This Hardware as a Service (“Haas”) Addendum (the “Addendum”) to the FLASH OS License, Service and Product Usage Terms and Conditions (together with this Addendum, the “Agreement”) governs the payment obligations as may be set forth in an applicable Order Form where Customer has elected HaaS terms.
Customer agrees that FlashParking, Inc. (“Flash”), through one of more affiliates, will provide all of the Flash Offerings contained in the applicable order form on behalf of Customer in exchange for the Monthly HaaS Payments set forth therein. As such, Customer hereby unconditionally agrees to pay to Flash the Monthly HaaS Payments each period by the applicable due date. This Agreement and the associated payment obligations will begin on the date the Commissioning Services are completed for the applicable Flash Offerings, as provided in the Agreement. If we do not receive any amounts due by the due date, at the remittance address indicated on your invoice, you will pay a late charge equal to: 1) the greater of ten (10) cents for each dollar overdue or twenty-six dollars ($26.00); or 2) the highest lawful charge, if less.
EXCEPT AS SET FORTH BELOW, THIS ADDENDUM AND THE AGREEMENT ARE NON-CANCELABLE BY CUSTOMER FOR THE ENTIRE AGREEMENT TERM. CUSTOMER UNDERSTANDS FLASH OR ONE OF ITS AFFILIATES ARE PROVIDING THE EQUIPMENT AND SERVICES BASED ON CUSTOMER’S UNCONDITIONAL ACCEPTANCE OF THESE TERMS AND YOUR PROMISE TO PAY UNDER THE TERMS OF THIS AGREEMENT, WITHOUT SET-OFFS FOR ANY REASON, EVEN IF THE EQUIPMENT DOES NOT WORK OR IS DAMAGED, AND EVEN IF IT IS NOT YOUR FAULT.
OPTION TO PURCHASE. Following the Initial Term, Customer shall have the option to purchase the Equipment set forth on an applicable Order Form (the “Purchase Option”) by giving notice, in writing, to Flash of its intention to exercise the Purchase Option (the “Purchase Option Notice”). Within thirty (30) days of receipt of the Purchase Option Notice, a Purchase Option Price (“Option Price”) will be generated by Flash and sent to Customer. Customer has thirty (30) days after receiving the Option Price to confirm or retract its decision to exercise the Purchase Option.
EQUIPMENT USE. You will keep the Equipment in good working order, use it for business purposes only, not modify or move it from its initial location without our consent, and bear the risk of its non-compliance with applicable laws. You agree that you will not take the Equipment out of service and have a third party pay (or provide funds to pay) the amounts due hereunder. You will comply with all laws, ordinances, regulations, requirements and rules relating to the use and operation of the Equipment.
ASSIGNMENT. You may not sell, assign or sublease the Equipment or this Agreement without our prior written consent. We may sell or assign this Agreement or our rights in the Equipment, in whole or in part, to a third party without notice to you. You agree that if we do so the assignee will have our rights but will not be subject to any claim, defense, or set-off assertable against us or anyone else.
SECURITY INTEREST. Flash shall, at all times, retain title to the Equipment. To secure your performance under this Agreement, you hereby grant Flash (and its affiliates) a security interest in the Equipment. Flash (and its affiliates and agents), as your agent and attorney in fact, are authorized to prepare and file any financing statements (including but not limited to UCC-1 and UCC-3), continuation statements, and all other instruments, and to take all other actions necessary to enforce and perfect this security interest during the Term of this Agreement.
LOSS OR DAMAGE. You are responsible for any damage to or loss of the Equipment. No such loss or damage will relieve you from your payment obligations hereunder.
INSURANCE. You agree to maintain commercial general liability insurance acceptable to Flash. You also agree to: 1) keep the Equipment fully insured against loss at its replacement cost, with Flash or one of its affiliates named as loss payee; and 2) provide proof of insurance satisfactory to Flash no later than 30 days following execution of the Agreement and this Addendum, and thereafter upon our written request. If you fail to maintain property loss insurance satisfactory to Flash and/or you fail to timely provide proof of such insurance, we have the option, but not the obligation, to secure property loss insurance on the Equipment from a carrier of our choosing in such forms and amounts as we deem reasonable to protect our interests. If we secure insurance on the Equipment, we will not name you as an insured party, your interests may not be fully protected, and you will reimburse us the premium which may be higher than the premium you would pay if you obtained insurance, and which may result in a profit to us through an investment in reinsurance. If you are current in all of your obligations under the Agreement at the time of loss, any insurance proceeds received will be applied, at our option, to repair or replace the Equipment, or to pay us the remaining payments due or to become due under this Agreement, plus our booked residual, both discounted at 3% per annum.
TAXES. You will pay, when due, either directly or by reimbursing us, all taxes and fees relating to the Equipment and this Agreement. Sales or use tax due upfront will be payable over the term with a finance charge.
TERM. The term of this Addendum and Agreement shall be as set forth in Section 6.1 of the Agreement and Flash may terminate this Addendum and the Agreement subject to and pursuant to Section 6.2 of the Agreement. Notwithstanding the foregoing, and notwithstanding anything to the contrary set forth in this Addendum or the Agreement, if this Addendum and the Agreement is terminated prior to the end of the Term, said termination shall be considered an “Early Termination” and Customer shall pay Flash an amount equal to the full amount of the fees for the remainder of the Term. This amount shall be due on the effective date of such Early Termination.
At the end of the term of this Agreement (the “End Date”), this Agreement will be of no further force and effect and the terms of the License Agreement shall be the controlling terms with respect to the Equipment. You cannot pay off this Agreement or return the Equipment prior to the End Date without our consent. If we consent, we may charge you, in addition to other amounts owed, an early termination fee equal to 5% of the price of the Equipment.
DEFAULT/REMEDIES. If a payment becomes 10 or more days past due, or if you otherwise breach this Agreement, you will be in default, and we may require that you return the Equipment to us at your expense and pay us: 1) all past due amounts and 2) all remaining payments for the unexpired term, plus our booked residual, discounted at 3% per annum; and we may disable or repossess the Equipment and use all other legal remedies available to us. You agree to pay all costs and expenses (including reasonable attorney fees) we incur in any dispute with you related to this Agreement. You agree to pay us interest on all past due amounts at the rate of 1.5% per month, or at the highest rate allowed by applicable law, if less.
DISCLAIMER. This Agreement does not create a finance lease, and nothing in this Agreement should be construed as such.
MISCELLANEOUS. The parties agree that the original hereof for enforcement and perfection purposes, and the sole “record” constituting “chattel paper” under the UCC, is either (a) the paper copy hereof bearing (i) the original or a copy of either your manual signature or an electronically applied indication of your intent to enter into this Agreement, and (ii) our original manual signature or (b) the copy of this Agreement executed by the parties and controlled by us or our assignee or custodian in accordance with the Electronic Signatures in Global and National Commerce Act or any similar state laws based on the Uniform Electronic Transactions Act and other applicable law as electronic chattel paper under the UCC. Upon execution, the parties agree to be bound to the terms hereof regardless of the medium or format in which this Agreement is maintained or controlled. If any provision of this Agreement is unenforceable, the other provisions herein shall remain in full force and effect to the fullest extent permitted by law. You authorize us to either insert or correct the Agreement number, serial numbers, model numbers, beginning date, and signature date, and acknowledge that if your Vendor filled in any blanks above, they did so on your behalf. All other modifications to the Agreement must be in writing signed by each party.