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, and maintain and service it in accordance with this Agreement:
[schedule of equipment including quantity, model number, description]
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 ($........) [or, include schedule of charges for each item]. This sum is payable, while this Agreement is in force except as otherwise provided below, in advance on the first day of each month. The first month's payment is payable on [commencement date] and will be prorated if it is for a period of less than thirty days.
After expiration of the Initial Term, Lessor has the right to change the monthly payments due under this Agreement on [number] days' prior written notice to Lessee.
6. Additional Charges.
a. Taxes. Lessee shall pay all taxes payable by Lessor (other than taxes based on Lessor's income) or Lessee that are imposed on the Equipment, its value or use, or this Agreement, including personal property or excise taxes. Lessor will send Lessee a statement of such taxes imposed on Lessor. One twelfth of the annual sum of such taxes imposed on Lessor shall be added to the monthly rent charge and is payable with such charge.
b. Use Charges. No limit is imposed on the amount of use time per month that Lessee may make of the Equipment, and no additional charges are imposed based upon the amount of use.
b. Use Charges. The monthly rental payments entitle Lessee to [number] hours of use time per month (or a pro rata share for portions of a full month). If Lessee uses the Equipment in excess of such time, as metered, Lessee will pay Lessor ........ dollars ($........) per hour of additional use time. Such sum is payable within [number] days after receipt by Lessee of a bill for such use.
7. 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. Such charges may not, however, exceed the normal charges payable for delivery.
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.
8. Installation. Lessor will install the Equipment at [address]. Lessee will pay Lessor ........ dollars ($........) for the installation, when the Equipment is in operating condition and upon receipt of a statement for such charge.
9. Repairs and Maintenance.
a. Responsibility. Lessor will make all necessary adjustments and repairs to the Equipment in order to keep it in good operating condition.
b. Personnel. Lessor will provide service personnel for maintenance at no charge to Lessee. If Lessor fails to provide repairs or remedial maintenance within [number] hours after notification and if the Equipment is inoperative, then Lessor will provide backup and support services through a service bureau Lessor designates. No other personnel shall be permitted to make repairs to or perform maintenance work on the Equipment. Lessor is not responsible for any loss or damage due to work done by anyone other than Lessor's staff or the personnel Lessor designates.
c. Schedule and Access. Lessor may specify the preventive maintenance schedule for the Equipment. Lessor will perform all preventive maintenance during normal business hours and at such times as is mutually agreeable with Lessee. Lessor will execute repairs and remedial maintenance after notification from Lessee.
Lessor's service personnel shall be given full and free access to the Equipment.
10. 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.
11. 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.
12. Risk of Loss and Damage. Risk of loss or damage is on Lessor, including loss or damage occurring while the Equipment is in transit or is in Lessee's possession, except for loss or damage caused by Lessee's gross negligence or Lessee's failure to care for the Equipment in accordance with the terms of this Agreement.
13. Liability. Lessee is liable for any loss or damage to persons or property (other than the Equipment) arising out of Lessee's use of the Equipment other than loss or damage caused by the negligence of Lessor or Lessor's personnel or agents. Lessee will indemnify and hold Lessor harmless for any such loss or damage. Such indemnity survives the expiration or termination of this Agreement.
14. Equipment Alterations. Alterations of or additions to the Equipment may be made solely with the prior written consent of Lessor.
15. 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 Australia. Lessee shall pay for all delivery, installation, and additional maintenance charges required for such change of location.
16. 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.
17. 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; (c) any failure or delay in providing services under this Agreement resulting from causes beyond Lessor's control; and (d) 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.
18. Patent Claims.
a. Obligation to Defend. Lessor will defend any action and pay all awards based on a claim that the Equipment infringes on an Australian 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 18 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 18 states the entire liability of Lessor with respect to any patent infringement by the Equipment or any item of Equipment.
19. Default of Lessor. If Lessor defaults in performing any of Lessor's obligations under this Agreement and such default continues for a period of [number] days after written notice from Lessee, then Lessee may terminate this Agreement, as of the end of such [number]-day period, upon written notice to Lessor.
20. 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.
21. Purchase Option.
a. Right to Purchase and Terms. During the term of this Agreement, Lessee may purchase all or part of the Equipment, upon written notice to Lessor of the exercise of Lessee's option, at the following prices less the credit described below:
[schedule of model numbers and purchase prices]
Lessee is entitled to a credit against the purchase price equal to the following percentage of total monthly rental payments for the items of Equipment purchased specified in Paragraph 5 and paid through the date of purchase:
[schedule of months of term and percentages]
b. Purchase Date. The purchase date shall be the date specified in Lessee's notice to Lessor, but in no event earlier than the first day of the month following the giving of such notice.
c. Termination of Lease. Upon purchase of all or any part of the Equipment by Lessee in accordance with this Paragraph 20, this Agreement will terminate with respect to the Equipment purchased as of the day immediately prior to the purchase date.
22. Return of Equipment. Upon expiration or termination of this Agreement, in whole or in part, other than the exercise of Lessee's purchase option specified in Paragraph 21, 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.
24. 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 it 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.