EQUIPMENT PARTNERSHIP AGREEMENT
1. Term – The Agreement shall become effective on acceptance by UNITEL. Agreement shall have an initial term as set forth above. If multiple items of equipment are to be provided this Agreement shall continue in effect for each respective item of equipment for the period as set forth on the page. Neither party shall terminate this Agreement except as herein provided prior to the expiration of the initial term.
The Rental Commencement Date for each item shall be the date the Equipment is installed, and accepted by the Customer or Customer’s Agent.
2. Monthly Partnership Agreement Charges – The first monthly Partnership Agreement charge shall be due on the Partnership Agreement Commencement Date, and subsequent monthly Partnership Agreement charges shall be due on the 10th day of each successive month. If customer fails to pay the rentals when specified, UNITEL may impose an interest service charge at the maximum rate permitted by law, on all installments of rent that shall remain unpaid after a period of thirty (30) days from the due date. This charge shall be payable with such delinquent rental when paid by Customer or collected by UNITEL upon default.
3. Taxes –
Customer shall keep the Equipment free and clear of all levies, liens and encumbrances and, in addition to rent during the term of this Agreement, shall pay all assessments, license fees, permits, taxes (including sales, use, excise, personal property, and valorem, stamp, documentary and other taxes) and all other governmental charges, fees, fines, or penalties whatsoever, whenever levied and whether payable by UNITEL or customer on or relating to the Equipment or the use, registration, rental, shipment, transportation, delivery, ownership or operation thereof, and on or relating to this Agreement Customer shall file returns required thereof and furnish copies thereof to UNITEL at its request provided, however, that the foregoing shall not include any federal or state income or franchise taxes of UNITEL. If UNITEL files the required tax returns, the Customer shall reimburse UNITEL upon demand for any taxes paid by or advanced by UNITEL.
4. Maintenance – Customer shall examine the Equipment upon delivery. This inspection shall be evidence of the good working order of the Equipment. Customer shall only use Equipment at the place designated on the page thereof, unless the Customer shall obtain the written consent of UNITEL, so long as customer is not in default under any terms of this Agreement. UNITEL shall, at its expense, maintain the Equipment and all additions and accessories with respect thereto, in good working order during normal working hours. Customer shall make no repair, alteration, or attachment with regard to the Equipment, without written consent of UNITEL, and in no event shall Customer permit any repairs to be performed by anyone other than an authorized UNITEL Dealer. All additions, attachments, accessories and repairs at any time made or placed upon Equipment shall become part of the Equipment and shall be property of UNITEL and, if rented from UNITEL, the term for any such addition, etc., shall be coterminous with the term of this Agreement.
5. Upgrade – At any time during the term of this Partnership Agreement, UNITEL will permit Partner to add/relocate or upgrade the Partnership Agreement at Customer’s expense in all accordance with UNITEL’s usual policies and guidelines.
6. Additions & Deletions – Customer agrees that if the total amount of the additions it requests equals twenty-five percent (25%) or more of the current contract, it will sign a new contract for a new term equal to the original term of this Agreement. Customer shall have the right, from time to time, to remove equipment from this system up to a total cumulative maximum of twenty-five (25%) of the contract agreement. In calculating the rental on equipment removed, customer shall be given credit at the lowest rates he is then paying for equipment of the type removed.
7. Usage – Customer shall use the Equipment only in accordance with this Agreement and with all applicable Laws. Such usage shall be exclusively for business or commercial purposes. UNITEL shall have the right, upon reasonable prior notice to the Customer and during Customer’s regular business hours to inspect the Equipment at the premises of the Customer, or wherever the equipment may be located pursuant to UNITEL’s written consent.
8. Transportation and Installation; Redelivery; Automatic Renewal – Customer shall pay all transportation, insurance, packing, duties, and other charges in connection with the delivery of the Equipment. Customer shall pay all installation charges associated with Equipment. At the end of the initial term of any extension thereof Customer will deliver at his expense deliver the Equipment to UNITEL’s set forth on the face thereof or any place designated by UNITEL. All equipment delivered by Customer to UNITEL will be in the same condition as when delivered to the Customer, reasonable wear and tear resulting in authorized use thereof accepted. De-installation will be performed by an authorized UNITEL dealer. All charges for de-installation and removal are at Customer’s expense. IF CUSTOMER FAILS TO NOTIFY UNITEL, NO LATER THAN 60 DAYS PRIOR TO THE END OF THE INITIAL TERM OR ANY RENEWAL TERM OF THIS AGREEMENT, OF ITS INTENTION TO DELIVER THE EQUIPMENT TO UNITEL AT THE END OF SUCH TERM, THEN THIS AGREEMENT SHALL BE AUTOMATICALLY RENEWED ON A YEAR-TO-YEAR BASIS FOR THE SAME MONTHLY RENTAL AMOUNT AS SET FORTH HEREIN.
9. Risk of Loss – Customer shall bear all risk of loss and damage to the equipment from any cause whatsoever and the occurrence of such loss or damage shall not relieve Customer of any obligations hereunder. It is the obligation of the Customer to notify the public authority in the event of mysterious disappearance of the equipment. No loss, damage, attachment or seizure of the Equipment or any part thereof shall impair any obligation of Customer under this Agreement including but not limited to its obligation to pay rental charges. In the event of loss, fire damage, attachment or seizure Customer at its expense and UNITEL’s option shall either (a) repair the equipment returning it to its previous condition, or (b) replace with like equipment acceptable to UNITEL in good condition and of equivalent value which shall become the property of UNITEL, subject to this Agreement; or (c) pay UNITEL the unpaid balance of the aggregate monthly rental charges discounted as in paragraph 17, plus the value of UNITEL’s residual in the Equipment. In the event the Equipment is destroyed by fire and Customer does rebuild and continue operations, either at the same location or another location, and does not permit UNITEL to install new Equipment for at least the remainder to the term of this lease, then Customer will immediately pay to UNITEL the total rent for the balance of the term.
10. Insurance – Customer shall keep the Equipment insured against all risks of loss or damage from every cause whatsoever For not less than the full replacement value thereof. The amount of such insurance shall be sufficient so that neither UNITEL nor Customer will be considered a coinsurer. Customer shall carry public liability insurance, both personal injury and property damage, covering the Equipment. All such insurance shall be in form and with companies satisfactory to UNITEL and shall name UNITEL and its Assignee as Loss Payee as its interest may appear with respect to property damage coverage and as additional insured with respect to public liability coverage and will promise that Customer and Insurers waive all rights to subrogation and release UNITEL, Its successor and assigns. Customer shall pay the premiums for such insurance and upon UNITEL’s request deliver to UNITEL satisfactory evidence of insurance coverage required hereunder. The proceeds to such insurance payable as a result of loss or damage to any item of Equipment shall be applied to satisfy Customer’s obligation as set forth in Paragraph 12 below. Customer hereby irrevocably appoints UNITEL, as Customer’s attorney-in-fact to make a claim for, receive payment of and execute and endorse all documents. Checks or drafts received in payment for loss or damage under any such insurance policy.
Indemnity – Customer shall indemnify and hold UNITEL harmless from any loss, claim or damage to persons or property arising out of Customer’s use or possession of the Equipment, which indemnity shall survive the termination of this Agreement, and shall fully insure the Equipment against all risks of loss or damage.
Title; Quiet Enjoyment – UNITEL shall at all times retain title to the Equipment, accessories, all cables and wires and said title shall not pass to the Customer and the same is not and shall not become part of the real estate wherein it may be installed, nor shall it be considered to be affixed to the real estate in such a way as to become a part thereof. Customer’s interest therein is only that of a Partner. Customer shall not (a) assign, transfer, pledge, hypothecate or otherwise dispose of this Agreement or the Equipment or (b) sublet or lend the Equipment or permit it to be used by anyone other than Customer or its employees. All documents of title and evidences of delivery shall be delivered to UNITEL. Customer hereby authorizes UNITEL at Customer’s expense, to cause this Agreement, or any statement for other instrument in respect of this Agreement showing the interest of UNITEL in the Equipment, including Uniform Commercial Code Financing Statements, to be filed or recorded and refilled and re-recorded, and grants UNITEL the right to execute Customer’s name thereto. Customer agrees to execute and deliver any statement or instrument requested by UNITEL for such purpose, and agrees to pay or reimburse UNITEL for any filing, recording, or stamp fees or taxes arising from the filing or recording of any such instrument or statement. Customer at its expense protect and defend UNITEL’s title against all persons claiming against or through Customer, at all times keep the Equipment free from legal process or encumbrance whatsoever and, shall give UNITEL immediate notice thereof and shall indemnify UNITEL from any loss caused thereby. Customer agrees to procure for UNITEL such estoppels’ certificates, landlord’s or mortgage’s waiver or other similar documents as UNITEL may reasonably request. Provided Customer is not in default hereunder, Customer shall quietly use and enjoy the Equipment subject to terms hereof.
13. Assignment by UNITEL – This Agreement or Equipment or any payments due hereunder may be assigned by UNITEL without Customer’s consent, and if so assigned, assignee shall have and be entitled to exercise any and all discretion, rights and powers of UNITEL hereunder, and all references herein to UNITEL shall include such assignee; but the assignee shall not be chargeable with any obligations or liabilities of UNITEL hereunder or with respect thereof. UNITEL may also grant said assignee a security interest in the Equipment, but said security interest shall not affect the right of the Customer as long as the Customer is not in default hereunder. Customer will settle all mechanical, service or other liens with respect to the rental evidenced hereby directly with UNITEL and not with UNITEL’s assignee hereunder, and UNITEL’s assignee shall have no liability or obligation arising out of such claim. Customer agrees not to assert as against UNITEL’s assignee, any defense, setoff, recoupment claim, or counterclaim, which Customer may have against UNITEL, whether arising under this Agreement or otherwise.
14. Warranties and Liabilities – UNITEL MAKES NO WARRANTIES EXPRESSED, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED . WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR USE. ALL OBLIGATIONS AND LIABILITIES ON THE PART OF UNITEL SHALL BE LIMITED TO THOSE EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN NO EVENT SHALL UNITEL BE LIABLE FOR DAMAGES, INCLUDING BUT NOT LIMITED, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE RENTAL, MAINTENANCE AND OPERATION, STORAGE ERECTION, DISMANTLING OR TRANSPORTATION OF THE EQUIPMENT. A DELAY IN REPAIRS SHALL NOT BE DEEMED A BREACH OF THIS AGREEMENT OR A WAIVER OF ITS PROVISIONS
15. Default – If anyone of the following events each an (“event of default”) shall occur, then to the extent permitted by applicable law, UNITEL shall have the right to exercise any one or more remedies set forth in Paragraph 16 below: (a) Customer fails to pay, when due, and indebtedness of Customer to UNITEL arising independently of this Agreement, and such default shall continue for 5 days.
a. Customer’s failure to pay or perform, when due, any of its liabilities or obligations contained or referred to herein:
b. Loss, theft, substantial damage, destruction or encumbrance of, to or on any of the Equipment covered by this Agreement or the levy, attachment or seizure of any such Equipment where the same is not adequately insured as required by this Agreement or in the reasonable judgment of UNITEL;
c. Customer’s dissolution or failure to pay its debt as they become due;
d. A case proceedings in bankruptcy, reorganization, insolvency, receivership or assignment for the benefit of creditors is instituted by or against Customer and/or any guarantor of customer’s obligation or liabilities hereunder or Customer takes any corporate action to authorize and of the foregoing;
e. Customer shall be in default under any obligation for loan repayment for the deferred purchase price of property or for rent payment under any lease of real or personal property and any applicable grace period with respect thereto shall have expired and the obligation shall not be contested in good faith by appropriate legal proceedings;
f. If Customer is an individual, the death of Customer;
g. To the extent permitted by law, Customer hereby waives any mandatory requirements of law, now or hereafter in effect which might limit or modify any of the remedies provided in this Agreement. LESSEE ACKNOWLEDGESTHAT THE TRANSACTION OF WHICH THIS AGREEMENT IS A PART IS A COMMERCIAL TRANSACTION AND HEREBY WAIVES ITS RIGHT TO NOTICE AND HEARING ALLOWED BY STATE OR FEDERAL LAW WITH RESPECT TO ANY PRE-JUDGEMENT REMEDY WHICH LESSOR MAY DESIRE TO USE.
16. Remedies – The following remedies are available to UNITEL in the event a default should occur.
a. Provide written notice to Customer of the default, declare the entire balance of the unpaid Lease Payments for the full lease term immediately due and payable; sue for and receive all Lease Payments and any other payments then accrued or accelerated under this lease or any other leases plus the estimated fair market value of the Equipment at the end of the originally scheduled Lease term, however, all accelerated Lease payments and the estimated fair market value of the Equipment shall be discounted to the date of the default at six percent (6%) per year, but only to the extent permitted by law;
b. Charge Customer interest on all monies due UNITEL at the rate of eighteen percent (18%) per year from the date of default until paid, but in no event more than the maximum permitted by law;
c. Charge customer with a returned check or non-sufficient funds (NSF charge) to reimburse UNITEL for time and expense incurred with respect to a check that is returned for any reason including non-sufficient or uncollected funds, such NSF Charge is stipulated and liquidated at $25.00; and
d. Require that the Customer return the Equipment to UNITEL, and in the event Customer fails to return the Equipment, enter upon the premises peaceably with or without legal process where the Equipment is located and repossess the Equipment free from all claims by Customer and without liability for trespass or any damages. Such return or repossession of the Equipment shall not constitute a termination of this lease unless UNITEL expressly notifies Customer in writing. In the event the Equipment is returned or repossessed by UNITEL and unless the Customer has terminated this Partnership Agreement, UNITEL may sell or re-lease the Equipment to such persons and upon such term as UNITEL may determine, at one or more public or private sales and with or without notice to Customer, and apply the net proceeds, deducting the costs and expenses of such sale or release, to Customer’s obligations with Customer remaining liable for any deficiency and with any excess being retained by UNITEL. The credit for any sums to be received by UNITEL from any such rental shall be discounted to the date of the Partnership Agreement and six percent (6%) per year;
e. Charge Customer for (i) all expenses incurred by UNITEL in connection with the enforcement of any of UNITEL’s remedies, including all expenses of repossessing, storing, shipping, repairing and selling the Equipment, and (ii) UNITEL’s reasonable attorney’s fees, (with or without suit) of at least 20% of the total monthly unpaid rental charges for the balance of the term of this Agreement. UNITEL and Customer acknowledge the difficulty in establishing the value for the unexpired lease term and therefore agree that the provisions of this Agreement represent an agreed measure of damages and are not to be deemed a forfeiture or penalty;
f. Whenever any Rental Payment is not made by Customer when due, Customer agrees to pay UNITEL, with one month, an amount calculated at the rate of ten cents per one dollar for each delayed payment, within a minimum of $25.00, as compensation for UNITEL’s internal operating expenses as arising as a result of such delayed payment, but only to the extent permitted by law. Such amount is payable in addition to all amounts payable by Customer as a result of the exercise of any other remedies;
g. All remedies of UNITEL are cumulative, are in addition to any other remedies provided for by law, and may to the extent permitted by law, be exercised concurrently or separately. The exercise of any one remedy shall not be an election of such remedy or to preclude the exercise of any other remedy. No failure upon the part of UNITEL to exercise and no delay in exercising any right or remedy will indicate a waiver thereof or modify the terms of this Lease. A waiver of default shall not be waiver of any other or subsequent default. UNITEL’s recovery shall in no event exceed the maximum recovery permitted by law.
17. General – a. All notices and consents required to be given hereunder shall be in writingand mailed to the address of the other party set forth on the face hereof or to such other address as such other party shall have designated by notice in writing;
b. This Agreement shall be governed by the laws of the State of Michigan and there are no understandings, agreements of representations, express or implied, not specified herein. As part of the consideration for UNITEL’s executing this Agreement, Customer agrees that all actions or proceedings arising directly or indirectly from this Agreement shall be litigated only in courts having situs within the State of Michigan and the Customer hereby consents to the jurisdiction of any local, state, or federal court located within the State of Michigan and waives personal service of any and all process upon the Customer herein, and consents that all such service or process shall be made by certified mail, return receipt requested, directed to the Customer at the address herein stated, and services so made shall be complete two(2) days after the same shall have been posted as aforesaid;
c. This Agreement shall be binding on the successors and assigns of the parties and shall not be deemed or construed to be modified, amended, rescinded, cancelled or waived in whole or in part, except by written amendment by the parties hereto;
d. Customer agrees that UNITEL may conduct a credit investigation of Customer, including the preparation of credit reports.
The foregoing terms and conditions shall prevail notwithstanding any variance with the terms and conditions of any purchase order submitted by the customer. This Agreement constitutes the entire agreement between UNITEL and Customer.