Net Lease of Computer
1. Parties. This Agreement is made on [date] between [name], a [state] corporation with its principal office at [address] (Lessor), and [name], a [state] corporation with its principal office at [address] (Lessee).
2. Description of Computer Equipment. Lessor will supply the following computer equipment (Equipment) to Lessee:
[schedule of equipment including quantity, model number, description of equipment]
3. Lease Term. Lessor leases the Equipment to Lessee for a term from [date] to [date] (Initial Term). However, the term of this Lease will not start until the Equipment is installed and ready for use at [address or other location description].
4. Right to Terminate. Any time after the Initial Term expires, either party may terminate this Agreement, in whole or as to any item of Equipment, on [number] days' prior written notice to the other. Until this Agreement is so terminated, it shall continue in force after expiration of the Initial Term.
5. Rental Payments. The monthly charge for lease of the Equipment is ........ dollars ($........) [or, include schedule of charges for each item]. This sum is payable while this Agreement is in force except as otherwise provided below, in advance on the first day for each month. The first month's payment is payable on [date] (Commencement Date) and will be prorated if it is for a period of less than thirty days.
After expiration of the Initial Term, Lessor has the right to change the monthly payments due under this Agreement on [number] days' prior written notice to Lessee.
6. Taxes. Lessee shall pay all taxes payable by Lessor (other than taxes based on Lessor's income) or Lessee that are imposed on the Equipment, its value or use, or this Agreement, including personal property or excise taxes. Lessor will send Lessee a statement of such taxes imposed on Lessor. One twelfth of the annual sum of such taxes imposed on Lessor shall be added to the monthly rent charge and is payable with such charge.
7. Use Charges. No limit is imposed on the amount of use time per month that Lessee may make of the Equipment, and no additional charges are imposed based upon the amount of use.
8. Delivery. Lessee will pay all transportation, rigging, drayage, and other charges for delivery of the Equipment to Lessee and return of the Equipment to Lessor on expiration or termination of this Agreement.
Lessee will supply personnel required for packing and unpacking the Equipment. Lessor will provide all suitable packing cases for return of the Equipment and a representative to oversee its packing, at no charge to Lessee.
9. Other Costs. Except as expressly stated in this Agreement, it is agreed that this is a net lease of the Equipment. Lessee is responsible for any and all costs and expenses related to this Agreement or the Equipment.
10. Installation. Lessor will install the Equipment at [address]. Lessee will pay Lessor for all costs of installation, when the Equipment is in operating condition and after receipt of a statement for such charge.
11. Repairs and Maintenance. Lessee will make all necessary adjustments and repairs to the Equipment in order to keep it in good working order. Lessee will not use the Equipment for any purpose for which it is not designed or reasonably suited. During the term of this Agreement, Lessee will, at Lessee's own cost, keep in force a maintenance agreement with [name of maintenance company] for each item of the Equipment. Lessee will, on request, provide Lessor with a copy of such maintenance agreement.
12. Electricity and Facilities. Lessee will furnish the required electric current and electricity for operation of the Equipment. Lessee will provide a suitable place of installation and all facilities specified in the installation manual. All facilities must satisfy the minimum standards of the National Board of Fire Underwriters for the protection of electronic computer systems, as recommended by the National Fire Protection Association.
13. Supplies. Lessee is responsible for obtaining all supplies required for use of the Equipment, and all such supplies must meet the specifications provided by Lessor.
14. Risk of Loss.
a. Responsibility. Risk of loss or damage is on Lessee until the Equipment is returned to Lessor. Lessor is relieved of all responsibility for risk of loss or damage to the Equipment.
b. Insurance. Lessee will, at Lessee's expense, insure the Equipment under an all-risk insurance policy in a sum not less than ........ dollars ($........). Lessor will be named as the loss payee under that policy. Lessee will, on demand, provide Lessor with a certificate of such insurance.
c. Abatement. If any item of Equipment is damaged, the rent payable under this Agreement shall continue without abatement except as provided in this Paragraph. If the Equipment can be repaired, Lessee will promptly repair it. If Lessee determines it cannot be repaired, then Lessee will pay to Lessor a sum equal to the original cost of the damaged Equipment. After such payment, rent payable under this Agreement for such item of Equipment will be abated.
d. Notice. Lessee will immediately notify Lessor of any loss or damage to any item of Equipment.
15. Liens. Lessee must keep the Equipment free and clear of all liens and encumbrances.
16. Alterations. Alteration of or additions to the Equipment may be made solely with the prior written consent of Lessor.
17. Change of Location. Lessee may, at Lessee's own cost and upon [number] days' prior written notice to Lessor, move the Equipment to any other office address of Lessee or Lessee's subsidiaries, within the United States. Lessee shall pay for all delivery, installation, and additional maintenance charges required for such change of location.
18. Warranty. Lessor warrants the Equipment will be in good operating condition.
Lessor makes no warranty, express or implied, including any warranty of merchantability or fitness for a particular purpose, except as stated in this Agreement.
19. Indemnification. Lessor is not liable to Lessee for any loss or damages caused by (a) any failure or delay in providing the Equipment; (b) any defect or deficiency in the Equipment; and (c) any interruption of or other loss of use of the Equipment. Lessor is not liable to Lessee for any special damages of whatever nature.
Lessee will indemnify and hold Lessor harmless against any such liability or actions relating to Lessor, including actions brought by third parties.
20. Patent Claims.
a. Obligation to Defend. Lessor will defend any action and pay all awards based on a claim that the Equipment infringes a U.S. patent. Lessee will give Lessor prompt, written notice of any such action brought against Lessee. Lessor will have complete control of such actions, including all settlement negotiations and decisions.
b. Right to Terminate Agreement. Lessor may terminate this Agreement as to any item of Equipment if a final injunction is issued against Lessee's use of it due to an infringement of a U.S. patent.
c. Disclaimer. Lessor has no liability to Lessee under this Paragraph 20 if any claim of patent infringement is based on Lessee's use of the Equipment in combination with items not leased under this Agreement and/or manufactured by Lessor, or is based on Lessee's use of the Equipment in ways for which it was not designed.
This Paragraph 20 states the entire liability of Lessor with respect to any patent infringement by the Equipment or any item of Equipment.
21. Default of Lessee.
a. Events of Default. The following are events of default by Lessee:
i. Failure to pay any sum payable to Lessor for [number] days after the due date in this Agreement, or, if no due date is specified, [number] days after Lessee's receipt of a bill; or
ii. Failure to perform any other obligation under this Agreement for [number] days after written notice from Lessor.
b. Remedies. In any such event, Lessor may, at Lessor's option:
i. Terminate this Agreement, as of the end of such [number]-day period, upon written notice to Lessee.
ii. Take possession of all or part of the Equipment (whether or not this Agreement is terminated), and enter Lessee's premises for such purpose without liability to it;
iii. Sell, lease, or hold all or part of the Equipment;
iv. Declare immediately due, and collect, the unpaid rent payable by Lessee during the stated term of this Agreement; and
v. Pursue any other remedy available to Lessor.
Lessee shall pay Lessor all costs and expenses, including reasonable attorney fees, incurred by Lessor to enforce any of the terms of this Agreement. Lessor's rights and remedies are not exclusive of each other, but shall be cumulative and may be enforced concurrently.
22. Return of Equipment. Upon expiration or termination of this Agreement, in whole or in part, Lessee shall return the Equipment, or the applicable item(s) of Equipment, to Lessor in good condition and repair except for normal wear and tear and the provisions of this Agreement regarding risk of loss.
23. Assignment. Lessee may not assign this Agreement without Lessor's prior written consent, except that Lessee may assign this Agreement to any parent or subsidiary corporation or any corporation that acquires all or substantially all of the assets of Lessee.
24. Security Interest by Lessor. If Lessor grants a third party a security interest in this Agreement, Lessee will:
a. Promptly execute and deliver to Lessor any documents Lessor reasonably requests in connection with such grant; and
b. Pay all sums due under this Agreement to such secured party after Lessee has been provided notice of the grant of the security interest and has been directed by Lessor to pay such third party.
25. Miscellaneous Terms.
a. Entire Agreement. This Agreement constitutes the entire agreement between the parties, and no earlier statement or written agreement has any force or effect. Lessee agrees Lessee is not relying on any representation of agreement except those contained in this Agreement.
b. Authority to Execute. Each party represents and warrants that execution of this Agreement is duly authorized by all necessary corporate action, and this Agreement is a valid and binding obligation of it.
c. Governing Law. This Agreement is to be governed by the laws of [state].
d. Successors and Assigns. This Agreement is binding on the parties and their respective successors and authorized assigns.