|
11. Loss; Damage; Insurance. You shall: (i) bear the risk
<br />of loss and damage to the Product(s) during the Initial Term
<br />and any Renewal Period; and (ii) keep the Product(s) insured,
<br />at Your expense, against all risks of loss and damage in an
<br />amount at least equal to its full replacement cost.
<br />12. Return of Products. Unless You take title to the
<br />tangible Products pursuant to Section 22 or Section 23, then
<br />You are required to return such Products under this Lease. In
<br />such a case, at the end of the Lease, You shall, after receiving
<br />an Equipment Return Authorization ("ERA") number from Us,
<br />promptly send the Products, at Your expense plus shipping
<br />and handling costs, to any location(s) that We designate in
<br />the contiguous United States. The Products must be properly
<br />packed for shipment with the ERA number clearly visible,
<br />freight prepaid and fully insured, and must be received in
<br />good condition, less normal wear and tear.
<br />13. Assignment. YOU SHALL NOT SELL, TRANSFER,
<br />ASSIGN, SUBLEASE, PLEDGE OR OTHERWISE
<br />ENCUMBER (COLLECTIVELY, -TRANSFER") THE
<br />PRODUCTS OR THIS LEASE IN WHOLE OR IN PART.
<br />14. Disclaimer of Warranties. WE MAKE NO
<br />REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS
<br />OR IMPLIED, REGARDING ANY MATTER WHATSOEVER,
<br />INCLUDING, BUT NOT LIMITED TO, THE SUITABILITY OF THE
<br />PRODUCT(S), ITS CONDITION, ITS MERCHANTABILITY, ITS
<br />FITNESS FOR A PARTICULAR PURPOSE, ITS FREEDOM FROM
<br />INFRINGEMENT, OR OTHERWISE. WE PROVIDE THE
<br />PRODUCTS TO YOU "AS IS," "WHERE IS" AND "WITH ALL
<br />FAULTS."
<br />15. Limitation of Liability. WE SHALL NOT BE LIABLE TO
<br />YOU AND YOU SHALL NOT MAKE A CLAIM AGAINST US FOR
<br />ANY LOSS, DAMAGE (INCLUDING INCIDENTAL,
<br />CONSEQUENTIAL OR PUNITIVE DAMAGES), OR EXPENSE OF
<br />ANY KIND ARISING DIRECTLY OR INDIRECTLY FROM THE
<br />DELIVERY, INSTALLATION, USE, RETURN, LOSS OF USE,
<br />DEFECT, MALFUNCTION, OR ANY OTHER MATTER RELATING
<br />TO THE PRODUCTS (COLLECTIVELY, -PRODUCT MATTERS").
<br />NOTWITHSTANDING ANY OTHER PROVISION OF THIS LEASE,
<br />EXCEPT FOR DIRECT DAMAGES RESULTING FROM PERSONAL
<br />INJURY OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY
<br />OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE
<br />MAXIMUM OUR LIABILITY TO YOU FOR DAMAGES
<br />HEREUNDER SHALL NOT EXCEED THE TOTAL OF THE
<br />AMOUNTS PAID TO US HEREUNDER BY YOU.
<br />16. Notice. All notices related to this Lease to Us
<br />shall be made by You, or an attorney representing You.
<br />Notice of non -renewal of this Lease shall be made as
<br />outlined in Section 3 herein by calling 1-800-NEOPOST
<br />(636-7678). All other notices, requests and other
<br />communications hereunder shall be in writing and sent to:
<br />MailFinance Inc., 478 Wheelers Farms Road, Milford, CT
<br />06461 ("Notice Address'). Such notices shall be considered
<br />given when: (i) delivered personally, or (II) sent by
<br />commercial overnight courier with written confirmation of
<br />delivery. In the event that We do not accept Your offer to
<br />enter this Lease, then You have the right to a written
<br />statement that specifies the reasons that Your offer was not
<br />accepted. You can request such a statement by writing to Us
<br />at the Notice Address.
<br />17. Integration. The Lease represents the final and
<br />only agreement between You and Us. There are no unwritten
<br />oral agreements between You and Us. The Lease can be
<br />changed only by a written agreement between You and Us.
<br />Any additional terms and conditions referenced on any
<br />Purchase Order shall be void and have no effect on this
<br />Lease.
<br />18. Severability. In the event any provision of this
<br />Lease shall be deemed to be invalid, illegal or unenforceable,
<br />the validity, legality and enforceability of the remaining
<br />provisions shall not in any way be affected or impaired
<br />thereby. The parties agree to replace any invalid provision
<br />with a valid provision, which most closely approximates the
<br />intent and economic effect of the invalid provision.
<br />19. Waiver or Delay. A waiver of any default hereunder
<br />or of any term or condition of this Lease shall not be deemed
<br />to be a continuing waiver or a waiver of any other default or
<br />any other term or condition, but shall apply solely to the
<br />instance to which such waiver is directed. We may accept
<br />late payments, partial payments, checks, or money orders
<br />marked "payment in full," or with a similar notation, without
<br />compromising any rights under this Lease.
<br />20. Survival of Obligations. Your obligations under this
<br />Lease shall survive any expiration or termination of any
<br />government procurement contract that may be related to it.
<br />Any obligations and duties which by their nature extend
<br />beyond the expiration or termination of this Lease shall
<br />survive the expiration or termination of this Lease.
<br />21. Choice of Law; Venue; and Attorney's Fees. This
<br />Lease shall be governed under the laws of the State of
<br />Connecticut, without regard to conflicts of law, and
<br />jurisdiction shall lie exclusively in a court of competent
<br />jurisdiction in New Haven County, Connecticut. In any
<br />litigation or other proceeding by which one party either seeks
<br />to enforce its rights under this Lease (whether in contract,
<br />tort, or both) or seeks a declaration of any rights or
<br />obligations under this Lease, to the extent allowable by law,
<br />the prevailing party shall be awarded its reasonable attorney
<br />fees, and costs and expenses incurred.
<br />22. FMV Leases. If this Lease is a fair market value
<br />lease, as indicated by the lease rate that has been used by Us
<br />to calculate Your Lease Payment then, unless You are in
<br />default, You may elect to purchase the hardware Products at
<br />the end of this Lease on an "as is, where is" basis for their fair
<br />market value, as reasonably determined by Us. In the event
<br />that You elect to do so, You must give us sixty (60) days prior
<br />written notice of Your election to purchase such Products.
<br />23. LTOP Leases. If this Lease is a lease to purchase, as
<br />indicated by the lease rate that has been used by Us to
<br />calculate Your Lease Payments then, at the end of the Initial
<br />Term and after You have made all of the Lease Payments, We
<br />shall transfer title to all hardware Products that are subject to
<br />this Lease to You on an "as is, where is" basis.
<br />24. Termination.
<br />24.1 Non -Appropriation.
<br />a. You warrant and represent that You intend
<br />to enter into this Lease for at least the entire Initial Term and
<br />that You are doing so for an essential government purpose.
<br />You agree that, prior to the expiration of the Initial Term, you
<br />shall not terminate this Lease in order to obtain the same or
<br />similar Products from another vendor.
<br />b. You may terminate this Lease at the end of
<br />Your current fiscal year, or at the end of any subsequent
<br />fiscal year, if appropriated funds are not available to You for
<br />the Lease Payments that will be due in the next fiscal year. In
<br />the event of such a non -appropriation, then You shall provide
<br />written notice to Us that states:
<br />Sufficient funds have not been and will not
<br />be appropriated for the remaining payments
<br />due under the Lease. I confirm that we will
<br />not replace the Products with similar
<br />Page 2 of 6 Direct Sales Government Product Lease Version: DirectGovLease-VO4-16
<br />
|