a. Seller shall retain full ownership of product(s) until full payment has been received in accordance with the Agreement, or sooner. Customer represents and warrants that any products received by it will be fully insured until the purchase price is paid in full.
b. Notwithstanding Seller retention of ownership, Customer shall incur all risks associated with loss or destruction of products.
c. Seller shall have the right and authority to repossess products, at Customer’s expense, if the purchase price is not paid when due.
a. Seller has created, acquired, or otherwise has rights in various concepts, ideas, methods, methodologies, procedures, know-how, and techniques, models, templates, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs; general-purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems. Nothing herein shall alter such ownership.
b. Customer shall provide Seller with reasonable opportunity to collect data from the Goods during any rental period or for the duration of time in which Customer receives Services from Seller following a purchase.
c. Seller shall own any and all data collected by the Goods or Customer’s employees, agents, and representatives during operation throughout rental periods or time in which Seller is providing Services, which relate to the operation of the Goods and associated equipment. Seller may use this data for updates and modifications of the Goods or any other use, which Seller deems appropriate or necessary.
1. Intellectual Property Rights
a. Seller shall own all Intellectual Property associated with the Goods and any derivative works thereto without regard to the party who may have developed such derivative works. This shall include, but not be limited to, concepts, technology or techniques developed in connection with the installation or use of any products or the provision of any Services hereunder.
b. Seller shall own all rights, title to, and interest in the copyright to works of authorship created by Customer or its employees or contracted employees, as it is related to Seller’s products and systems and Customer shall execute any documents required to establish Seller’s ownership of such copyright.
2. Intellectual Property Indemnification
a. Seller shall indemnify and hold harmless Customer and its affiliates, subsidiaries, customers, and subsequent purchasers or users from any losses or damages arising from any potential or actual claim alleging infringement or violation of intellectual property rights or licenses delivered or performed in connection with this Agreement.
b. Seller shall supersede Customer in defense of any claim, and assume and conduct the defense at Seller's sole discretion, in such an event, Customer shall be released from any obligation to pay for attorney’s fees and court costs, but shall not be released from any obligation to pay for settlement or damages, and any such release is expressly conditioned on Customer’s complete cooperation with Seller in Seller’s defense of such claim at Seller’s expense. Customer shall not enter into any settlement without Seller’s prior written consent.
3. Software License
a. Except as provided below, upon full and final payment to Seller, Seller grants Customer and its corporate affiliates, a royalty-free paid-up, worldwide, non-exclusive, perpetual, license to use the software delivered to Customer as a result of the Services and Seller’s related technology incorporated into such software. Such license may not be sublicensed without Seller’s prior written consent and may be revoked should Customer breach any of the Terms and Conditions.
4. Third-Party Software Liability
a. Seller has no liability with respect to any claims relating to or arising from the use by Customer of Third-Party Software or any other third-party products.
1. Limited Warranty
a. Seller warrants, for a period of twelve (12) months after acceptance of the products by Customer (the “Warranty Period”), that all products provided hereunder shall be: (i) free from defects in material and workmanship; and (ii) manufactured in accordance with the applicable Specifications. This limited warranty is limited to the repair or replacement of any defective product. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS AND SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER SHALL CREATE A WARRANTY.
2. Pass Through of Third-Party Warranties.
a. To the extent assignable by Seller, all manufacturer warranties for any products (including software) procured by Seller on Customer’s behalf in connection with the products or services provided hereunder shall be passed through to Customer and Seller shall have no liability for same.
3. Limitation of Liability.
a. Seller, its affiliates, and each of their officers, directors, stockholders, members, managers, employees, and agents shall not be liable for any loss or damage caused by delay in providing the products or services provided hereunder, to the extent that such delay is attributable to delay by Customer or caused by a Force Majeure Event. UNDER NO CIRCUMSTANCES SHALL SELLER, ITS AFFILIATES, OR ANY OF THEIR OFFICERS, DIRECTORS, STOCKHOLDERS, MEMBERS, MANAGERS, EMPLOYEES, OR AGENTS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, TREBLE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOST DATA OR CONTENT, BUSINESS INTERRUPTION, OR LOSS OF GOODWILL), WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY OR ANY OTHER BASIS UNDER OR AS A RESULT OF THIS AGREEMENT OR THE SERVICES OR PRODUCTS PROVIDED HEREUNDER, IRRESPECTIVE OF WHETHER CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The parties hereby agree that the limitations on liability set forth herein are independent of any exclusive or limited remedies, and shall survive and apply even if such remedies are found to have failed of their essential purpose. No action, regardless of form, arising out of the transactions under the Agreement or Terms and Conditions may be brought by Customer more than one (1) year after the events which gave rise to the cause of action occurred.
4. Limitations of Warranty
a. The limited warranties set forth above in Article VI(1), shall not apply if the Product(s) or Service(s) upon which Customer's claim is based is:
i. not used in accordance with the documentation provided by Seller relating to the Products or Services;
ii. has been modified without Seller’s express authorization;
iii. fails to function due to a malfunction of Customer's or any third-party equipment;
iv. fails to function as a result of Customer's misuse, abuse, negligence, or unreasonable use in any way as determined by Seller.
v. causally related to any violation of any applicable national, state, and/or local law(s), ordinance(s), and/or regulation(s).
Article VII: Compliance and Requirements
1. Aviation Specific Requirements
a. Customer shall be solely responsible for conformance to all governmental regulations and certifications related to its aircraft, operations, operators, and other project-specific requirements as those regulations and certifications relate to Products provided by Seller.
2. Compliance with Laws
a. Seller and Customer shall comply with all applicable national, state, and local laws, ordinances, and regulations applicable to their respective performance hereunder.
b. Customer shall immediately notify Seller if Customer is suspended, disbarred, or restricted from doing business with the U.S. Government. Any such prohibition shall constitute a termination of the Agreement under Article IX(1)(c) of these Terms and Conditions.
c. Customer shall notify Seller in writing immediately, following the filing of formal charges, alleging Customer has committed fraud or corrupt practice in any federal, state, or foreign governmental criminal proceeding.
a. Customer shall cooperate with Seller in the performance by Seller of its Services hereunder, including without limitation, providing Seller with reasonable facilities and timely access to all relevant data, information, and personnel of Customer. Customer shall be responsible for the performance of its employees and agents and for the accuracy and completeness of all data and information provided to Seller for purposes of the performance by Seller of its Services hereunder.
Upon Customer’s request made during the Warranty Period, Seller shall deliver training data for maintenance of the Goods. The training material shall enable a technician to perform the recommended maintenance on the Goods. Additionally, Seller shall deliver a proposal to conduct practical hands-on training and instruction for the Customer, when requested. Training services shall be billed to Customer at Seller’s then standard rates.
2. Technical Support Services
Upon Customer’s request made during the Warranty Period, Seller shall deliver to Customer the technical assistance necessary to service, maintain, inspect, repair, overhaul, and operate the Goods.
3. Technical Publications
a. Seller shall keep and maintain all technical manuals and publications for the Goods and ensure that they are:
i. technically accurate; and
ii. and fully compliant with appropriate governmental specifications and requirements.
b. Upon Customer’s request, Seller shall deliver technical publications.
a. Unless otherwise agreed, each sale is a one-time event without recurrence or a renewal period.
b. For large orders extending beyond a twelve (12) month delivery schedule, Schedule II., as amended by mutual agreement, shall control any right to terminate before delivery is completed.
c. Either Party may terminate this agreement upon thirty (30) days-notice after the non-breaching Party has given the breaching Party notice of the breach and a reasonable opportunity to cure. No such notice shall be required if the default is a default in payment.
d. Upon termination, any Products, in which Seller retains title and are in Customer’s possession, shall be returned to Seller at Customer’s sole cost, provided delivery is to Seller’s facilities. One week prior to delivery of such Products, Customer will confirm the delivery location with Seller.
1. Force Majeure
a. Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached the Agreement for any failure or delay in fulfilling or performing any terms, when and to the extent such failure or delay is caused by: (a) acts of God; (b) flood, fire, explosion or chemical contamination; (c) epidemic, pandemic, quarantine restriction or plague; (d) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (e) acts of war, revolution, acts or threats of terrorism, invasion, riot, insurrection, or other armed conflict or civil unrest; (f) national, regional, or local emergency; (g) damage to or failure of any facility from which the affected Party operates or upon which the affected Party relies for the operation of its business or any material portion thereof other than damage to or failures caused by the affected Party; or (h) national or regional shortage of adequate power, telecommunications, or transportation facilities (each of the foregoing, a "Force Majeure Event"), in each case, provided that (i) such event is outside the reasonable control of the affected Party; and (ii) such event cannot, despite the exercise of Commercially Reasonable Efforts by the affected Party, be controlled, prevented, avoided or removed the affected Party. The Party claiming excused performance by reason of a Force Majeure Event will provide reasonable notice of such claim to the other Party. A Party may unilaterally terminate the Agreement with immediate effect if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of ninety (90) Business Days or more.
b. Unless otherwise agreed to by both Parties, lack of financial resources will not be considered an event beyond the reasonable control of the afflicted Party.
c. To claim a Force Majeure Event, the Party shall provide notice, as described in Article XII(8) herein.
i. The notice will provide the details of the pending or existing problem, which satisfies the Force Majeure Event requirements.
ii. Notice shall be given within five (5) business days of such facts coming to the attention of the Party.
iii. Notice shall also include a plan to “work-around” the issues frustrating the satisfaction of the Agreement.
1. News Releases and Publicity
a. Customer shall not make or authorize any news release, advertisement, or other disclosure that relates to the Goods, any of its components, or the relationship between Customer and Seller without express written permission of Seller.
b. Customer shall not make use of the Seller’s name or logo without Seller’s prior express-written consent.
2. Inspection and Audit
a. Seller shall maintain complete inspection records for all Products which shall be available to Customer for six (6) months after the final payment, or final resolution of any dispute involving the Products delivered.
3. Security of Customer’s information
a. Customer and Seller acknowledge and agree that all information communicated to either Customer or Seller by the other Party in connection with the performance by a Party under the Agreement, including but not limited to purchase price, rental price, and other contract terms shall be received in confidence, shall be used only for purposes of the associated agreement, and no such confidential information shall be disclosed by the respective parties or their agents or personnel without the prior written consent of the other Party.
b. Except to the extent otherwise required by applicable law or professional standards, the Parties' obligations under this paragraph do not apply to information that:
i. is or becomes generally available to the public other than as a result of disclosure by Customer or Seller,
ii. known to either Customer or Seller or had been possessed by Customer or Seller without restriction against disclosure at the time of receipt thereof by Customer or Seller,
iii. was independently developed by Customer or Seller without violation of this paragraph, or
iv. Customer and Seller agree from time to time to disclose.
c. Each Party shall be deemed to have met its nondisclosure obligations under this paragraph as long as it exercises the same level of care to protect its own confidential information, to the extent that applicable law or professional standards impose a higher requirement. Seller may retain, subject to the terms of this paragraph, copies of Customer's confidential information required for compliance with applicable professional standards or internal policies.
d. If either Party receives a subpoena or other validly issued administrative or judicial demand requiring it to disclose the other Party's confidential information, such Party shall, within five (5) days of receipt of the demand, provide written notice to the other Party of such demand in order to permit such other Party to, at its own expense, seek a protective order. So long as the notifying Party gives notice as provided herein, the notifying Party shall thereafter be entitled to comply with such demand to the extent permitted by law, subject to any protective order or the like that may have been entered in the matter.
1. Terms and Conditions
a. These Terms and Conditions shall apply to the Agreement. In the event of a discrepancy between the Agreement, or any supplement, schedule, or addendum, and these Terms and Conditions, these Terms and Conditions shall prevail.
2. No Waiver
a. No failure of any Party to exercise any right hereunder, or to require compliance with the Agreement or these Terms and Conditions, shall constitute a waiver by such Party of its rights contained in the Agreement or these Terms and Conditions. No concession, latitude or waiver allowed by either Party to the other at any time shall be deemed a concession, latitude, or waiver with respect to any rights unless and only to the extent expressly stated in writing, nor shall it prevent such party from enforcing any rights in the future under similar circumstances.
3. Entire Agreement
a. The Agreement and these Terms and Conditions constitute the entire agreement between Seller and Customer with respect to the subject matter hereof and supersede all other oral and written representation, understandings, or agreements relating to the subject matter hereof.
a. No amendment to the Agreement or these Terms and Conditions will be effective unless it is in writing and signed by both Parties.
a. Except as provided below, neither Party may assign, transfer, or delegate any of the rights or obligations hereunder without the prior written consent of the other Party.
b. Seller may assign its rights and obligations hereunder to an affiliate or successor in interest to all or substantially all of the assets or business of the relevant Seller’s practice without the consent of Customer.
a. The Agreement may be signed in one or more counterparts, which together will form a single agreement.
7. Electronic Signatures
a. The Agreement may be signed electronically.
a. All notices and other communications called for shall be in writing and shall either be delivered by hand, electronically, mailed via first-class mail with postage prepaid, or sent via nationally recognized overnight courier capable of providing evidence of delivery.
b. Notices shall be sent to the address listed on the signature page of the Agreement or upon any other address agreed to, in writing, by the Parties.
9. Relationship of the Parties
a. The relationship between Seller and Customer is one of independent contractors and not of principal and agent, nor of legal partners. Neither Party shall represent itself as the agent or legal partner of the other Party nor perform any actions that might result in other persons believing that it has any authority to bind or to enter into commitments on behalf of the other.
10. Applicable Law and Forum
a. The Agreement and these Terms and Conditions shall be interpreted in accordance with the plain English meaning of its terms, and the construction thereof shall be governed by the laws in force in the State of Delaware. The parties expressly waive the jurisdiction of any foreign court or tribunal.
b. Any action arising from or related to this Agreement shall be governed by Delaware State law.
c. If Customer is entitled to immunity from legal actions on the grounds of sovereignty or otherwise, Customer shall waive and not plead such immunity in any legal action arising from the Agreement.
a. Parties agree that all actions or proceedings arising in connection with the Agreement or these Terms and Conditions shall be tried and litigated only in the state and federal courts located in the City and County of Denver, State of Colorado or, at the sole option of Seller, in any other court in which Seller shall initiate legal or equitable proceedings and which has subject matter jurisdiction over the matter in controversy. Customer and Seller hereby waive, to the extent permitted under applicable law, any right each may have to assert the doctrine of forum non-conveniens or to object to the venue to the extent any proceeding is brought in accordance with this section.
12. Dispute Resolution
a. Parties shall attempt to resolve any disputes related to the Agreement or these Terms and Conditions through voluntary mediation; the mediator will be agreed upon by both Parties and paid for by the Party bringing the dispute unless a different arrangement is agreed upon during mediation.
b. If mediation does not resolve the dispute, Parties shall engage in binding arbitration. The arbiter, which will be agreed upon by both Parties, and the arbitration fees will be equally shared by both Parties unless a different arrangement is agreed upon or ordered by the arbiter. Arbitration shall be conducted by the Judicial Arbiter Group in Denver, Colorado. If Judicial Arbiter Group is not available, arbitration shall be through a similar private arbitration firm.
c. Each Party shall continue performing its obligations under an order pending resolution of a dispute. The dispute resolution procedures set forth in these Terms and Conditions do not supersede, delay or otherwise affect any rights of termination that are expressly set forth in Article IX.
13. Duty to Proceed
a. Except as expressly authorized in writing by Seller, no failure of Seller and Customer to reach an agreement regarding a dispute shall excuse Customer from proceeding.
a. All rights, obligations, and duties contained in the Agreement and these Terms and Conditions shall survive the expiration or termination of the Agreement.
a. In the event that any term or provision of the Agreement or these Terms and Conditions shall be held to be invalid, void, or unenforceable, the remainder of the Agreement or these Terms and Conditions shall not be affected, impaired, or invalidated, and each such term and provision of the Agreement or these Terms and Conditions shall be valid and enforceable to the fullest extent permitted by law.
The following Equipment Lease Terms and Conditions (the "Terms and Conditions") shall be deemed to be incorporated into any and all Invoices, Lease Orders, or Lease Agreements (individually and collectively, the "Agreement") for the lease of Equipment (defined in the Agreement) executed between Vita Inclinata Technologies, Inc. (the “Lessor”), and a party leasing Equipment from Lessor (the “Lessee”). By executing the Agreement, Lessee signifies its lease of the Equipment is to be bound by these Terms and Conditions in addition to the Agreement. In the event of any inconsistency between the provisions of these Terms and Conditions and any provision of the Agreement, the terms and provisions of these Terms and Conditions shall govern and control.
1. Operation. Lessee shall at its expense keep and maintain the Equipment in a good state of repair, normal wear and tear excepted, and shall use the Equipment only for its intended purpose and follow Lessor's instructions and manuals regarding the safe use and maintenance of the Equipment. Lessee shall use the Equipment in a careful and proper manner and shall comply with all national, state, municipal, and other laws, ordinances and regulations in anyway relating to the possession, use or maintenance of the Equipment.
2. Rent. In consideration of Lessee's right to possess and use the Equipment during the Term (as defined in Section 9), Lessee shall pay the rent at the rate specified in the Agreement ("Rent") in advance, and, if applicable, on the first day of each calendar month during the Term. Lessee shall pay all delivery and shipping costs to transport the Equipment to and from the Lessee’s designated delivery site. Lessee shall pay interest on all late payments at the lesser of the rate of 1.5% per month and the highest rate permissible under applicable law, calculated daily and compounded monthly. Lessee shall reimburse Lessor for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Payment of any late charge does not excuse Lessee of any default under these Terms and Conditions or the Agreement.
If by the expiration of the Term, Lessee does not return the Equipment to Lessor in the condition and on the terms and conditions of Section 5, Lessee shall continue to comply with all the terms and conditions of these Terms and Conditions and the Agreement, including the obligation to pay the prorated daily Rent for each day from the expiration of the Term until the date on which Lessee returns such Equipment to Lessor in the manner required under Section 5 ("Holdover Rent"). Lessee shall not construe anything contained in this Section, including Lessee's payment of Holdover Rent, as Lessor's (a) waiver of Lessee's failure to perform any obligation under these Terms and Conditions or the Agreement; or (b) assent to any renewal of the Agreement.
3. Limited Warranty. Lessor shall replace the Equipment with identical or similar Equipment if the Equipment fails to operate in accordance with the manufacturer's specifications and operation instructions. Such replacement shall be made as soon as practicable after Lessee returns the non-conforming Equipment. Lessee shall return all non-conforming Equipment at its expense and risk of loss to Lessor to the destination specified by Lessor. Products manufactured by a third party ("Third-Party Products") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Equipment. Third-Party Products are not covered by the above limited warranty.
The limited warranty above does not apply where the Equipment has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions, or use contrary to any instructions issued by Lessor, or used with any Third-Party Product, hardware, software, or product that has not been previously approved in writing by Lessor.
OTHER THAN AS SET FORTH ABOVE, LESSOR MAKES NO WARRANTY WHATSOEVER, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INTERFERENCE; OR (d) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
THE REMEDIES SET FORTH IN THIS Section 3 ARE LESSEE'S SOLE AND EXCLUSIVE REMEDIES AND LESSOR'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
4. Title and Risk of Loss. Title to the Equipment remains with Lessor throughout the Term, and Lessee shall acquire no right, title, or interest in the Equipment. Lessee shall not pledge or encumber the Equipment in any way. Lessee shall bear all risk of loss, damage, destruction, theft, and condemnation to or of the Equipment from any cause whatsoever ("Loss") until the Equipment has been returned to Lessor as specified in Section 5.1. Lessee shall notify Lessor in writing within 10 days of any such Loss.
5. Return of Equipment.
5.1 Obligation to Return Equipment. Lessee shall, at its risk and expense, no later than the expiration of the Term (a) deinstall, inspect, and properly pack the Equipment; and (b) return the Equipment, freight prepaid, to Lessor's designated facility by delivering the Equipment on board such carrier as Lessor may specify.
5.2 Condition of Equipment Upon Return. Lessee shall cause the Equipment returned for any reason under these Terms and Conditions or the Agreement to (a) be free and clear of all liens (other than liens of Lessor) and rights of third parties; (b) be in the same condition as when delivered to Lessee, including damage due to neglect, ordinary wear and tear excepted; (c) have all Lessee's insignia or markings removed or painted over and the areas where such markings were removed or painted over refurbished as necessary to blend with adjacent areas; and (d) be in compliance with applicable law.
6. Compliance with Law. Lessee shall (a) comply with all applicable laws, regulations, and ordinances and (b) maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms and Conditions and the Agreement.
7. Indemnification. Lessee shall indemnify, defend, and hold harmless Lessor and its officers, directors, managers, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the Agreement, and the cost of pursuing any insurance providers, relating to any claim of a third party arising out of or occurring in connection with the Equipment or Lessee's negligence, willful misconduct, or breach of these Terms and Conditions or the Agreement. Lessee shall not enter into any settlement without Lessor's prior written consent.
8. Insurance. During the Term, Lessee shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability insurance in a sum no less than $10,000,000.00 with financially sound and reputable insurers. Upon Lessor's request, Lessee shall provide Lessor with a certificate of insurance from Lessee's insurer evidencing the insurance coverage specified in these Terms and Conditions and the Agreement. Lessee shall provide Lessor with 14 days' advance written notice in the event of a cancellation or material change in Lessee's insurance policy. Except where prohibited by law, Lessee shall require its insurer to waive all rights of subrogation against Lessor's insurers and Lessor.
9. Term and Termination. The term of the Agreement commences on the date the Lessee receives delivery of the Equipment, and continues for the period specified in the Agreement, unless and until earlier terminated as provided under these Terms and Conditions (the "Term"). In addition to any remedies that may be provided in these Terms and Conditions and the Agreement, either Party may terminate the Agreement with immediate effect upon notice to the other Party, if the other Party: (i) fails to pay any amount when due under the Agreement and such failure continues for 30 days after the other Party's receipt of notice of nonpayment; (ii) has not otherwise performed or complied with any of the terms of these Terms and Conditions or the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. If Lessee is in default of any of the terms and conditions of these Terms and Conditions or the Agreement, Lessor, and its agents, at Lessee's risk, cost, and expense may during normal business hours enter Lessee's premises where the Equipment is stored or used and recover the Equipment.
10. Confidential Information. All non-public, confidential, or proprietary information of Lessor, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Lessor to Lessee, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential," in connection with these Terms and Conditions or the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized by Lessor in writing. Upon Lessor's request, Lessee shall promptly return all documents and other materials received from Lessor. Lessor shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Lessee at the time of disclosure; or (c) rightfully obtained by Lessee on a non-confidential basis from a third party.
11. Entire Agreement. These Terms and Conditions and the Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.
12. Survival. Subject to the limitations and other provisions of these Terms and Conditions and the Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of the Agreement; and (b) any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of the Agreement.
13. Notices. All notices given under these Terms and Conditions or the Agreement must be made in writing and sent either electronically or addressed to the relevant Party at the designated address of the relevant Party or to such other address that may be designated by the receiving Party from time to time in accordance with this Section 13. A notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section 13.
14. Severability. If any term or provision of these Terms and Conditions or the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
15. Amendments. No amendment to or modification of these Terms and Conditions or the Agreement is effective unless it is in writing, identified as an amendment to these Terms and Conditions and the Agreement and signed by an authorized representative of each Party.
16. Waiver. No waiver by any party of any of the provisions of these Terms and Conditions or the Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms and Conditions and the Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms and Conditions or the 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.
17. Cumulative Remedies. All rights and remedies provided in these Terms and Conditions and the Agreement 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. Notwithstanding the previous sentence, the Parties intend that Lessee's rights under Section 3 are Lessee's exclusive remedies for the events specified therein.
18. Assignment; Successors and Assigns. Lessee shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms and Conditions or the Agreement without the prior written consent of Lessor. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Lessee of any of its obligations hereunder. Lessor may at any time assign, transfer, or subcontract any or all of its rights or obligations under these Terms and Conditions and the Agreement to any affiliate or to any person acquiring all or substantially all of Lessor's assets without Lessee's prior written consent. These Terms and Conditions and the Agreement are binding on and inures to the benefit of the Parties to these Terms and Conditions and the Agreement and their respective permitted successors and permitted assigns.
19. No Third-Party Beneficiaries. These Terms and Conditions and the Agreement benefits solely the Parties to these Terms and Conditions and the Agreement and their respective permitted successors and assigns and nothing in these Terms and Conditions and the Agreement, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions and the Agreement.
20. Choice of Law and Choice of Forum. These Terms and Conditions and the Agreement and all matters arising out of or relating to these Terms and Conditions and the Agreement are governed by, and construed in accordance with, the laws of the State of Colorado, without regard to the conflict of laws provisions of such State. Any legal suit, action, or proceeding arising out of or relating to these Terms and Conditions and the Agreement must be instituted in the federal courts of the United States of America or the courts of the State of Colorado, in each case located in the City and County of Denver, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
21. Limitation of Liability. LESSOR SHALL NOT BE LIABLE OR RESPONSIBLE TO LESSEE FOR ANY CLAIM, LOSS, DAMAGE, LIABILITY OR EXPENSE OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, CAUSED BY, ARISING OUT OF OR RELATING TO (1) THE LESSEE’S USE OF THE EQUIPMENT, OR THE INADEQUACY THEREOF FOR ANY PURPOSE, OR ANY DEFECT OR DEFICIENCY THEREIN, OR THE USE, OPERATION OR STORAGE THEREOF, OR THE INTERRUPTION OR LOSS OF THE SERVICE OR USE THEREOF, OR ARISING FROM ANY OTHER REASON OR CAUSE WHATSOEVER RELATING TO OR CONCERNING LESSEE’S USE OF THE EQUIPMENT; AND (2) ANY BREACH OF ANY PROVISION OF THESE TERMS AND CONDITIONS OR THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT LESSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL LESSOR'S AGGREGATE LIABILITY UNDER THESE TERMS AND CONDITIONS OR THE AGREEMENT EXCEED THE TOTAL OF THE AMOUNTS PAID TO LESSOR HEREUNDER.
22. Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms and Conditions or the Agreement, for any failure or delay in fulfilling or performing any term of these Terms and Conditions and the Agreement (except for any obligations of Lessee to make payments to Lessor hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, pandemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms and Conditions and the Agreement; (f) national or regional emergency; and (i) other similar events beyond the reasonable control of the Impacted Party.
The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 days following written notice given by it under this Section 22, the other Party may thereafter terminate these Terms and Conditions and the Agreement upon 10 days' written notice.