HARDWARE ADDENDUM
IDP Hardware Addendum
This Product Term is incorporated by reference into and forms part of the Zonar Unified End User License Agreement. It applies only to the products and services identified in your Order.
1. Title
Title in the IDP Hardware shall at all times remain with Company. Company may enter Customer’s property to repossess the IDP Hardware if Service fees are not received in full by their due dates. This IDP Hardware is an operating lease (similar to a rental agreement). Customer will not own the hardware at the end of the Term.
2. Payments
Unless otherwise specified in an applicable Order, IDP payments for use of the IDP Hardware shall be included in the Service fees (whether separately stated or included as a component of a lump sum). Service for IDP Hardware cannot be turned on and off during the Term, but IDP Hardware can be moved from one vehicle to a different vehicle. Customer must notify Company when such movement occurs.
3. Return of Hardware
Upon expiration or termination of the Term, Customer shall be solely responsible, at its own expense, for the de-installation, packing, rigging and delivery of the IDP Hardware, in an unencumbered state, back to Company, at a location specified by Company (if no such location is specified, then the returns should be shipped to Company’s headquarters location as of the date of termination, as identified on Company’s public facing website, www.Companysystems.com, which currently is 821 2nd Ave., Suite 1100, Seattle, WA 98104. Should Customer not return the IDP Hardware at the end of the Term, the Term shall be extended for successive three (3) month periods, and Customer shall pay Service Fees for such IDP Hardware during such extension period (each, a “Holdover Period”) at a rate equal to one hundred twenty percent (120%) of the then-current applicable rates for such Hardware and Services, subject to the right of either party during each such extension to terminate the extended Term upon thirty (30) days’ written notice. Upon such a termination, Customer shall promptly deliver the IDP Hardware to Company or its agents. If Customer fails to return the IDP Hardware upon Company’s demand, Customer shall pay Company, as the reasonable measure of Company's damages and not as a penalty, the then current list price for functionally equivalent Company Hardware. Any IDP Hardware that is returned in inoperable condition, or which exhibits more than ordinary wear and tear, will be subject to the Stipulated Loss Value defined below.
4. Net Lease
Each lease of IDP Hardware under an Order is a “net lease.” Therefore, Customer's obligation to pay all Service Fees and/or other sums due and payable, with respect to the IDP Hardware and Company’s rights to such payments, shall be absolute and unconditional and not subject to any abatement, reduction, setoff, counterclaim or other defense for any reason whatsoever, including, but not limited to, any claims which Customer may have against any third party or Company. It is a primary purpose of Company in entering into such lease(s) to claim all available tax benefits of ownership with respect to the IDP Hardware under the pricing and term of this Agreement. Therefore, Customer acknowledges and agrees that (i) no right, title or interest in the IDP Hardware has been or is intended to be passed to Customer, other than the right to maintain possession and use of the IDP Hardware for the Term and any extensions thereto under the terms and conditions of the Agreement; (ii) Customer has not taken and shall not take at any time during the Term and any extensions thereto any action which shall cause Company to lose any tax benefits of ownership; and (iii) the Stipulated Loss Values (defined below) are intended to provide recovery by Company of any such lost tax benefits of ownership.
5. Loss of IDP Hardware
Customer shall bear the entire risk of the IDP Hardware being lost, destroyed or otherwise rendered permanently unfit or unavailable for use from any cause whatsoever (an “Event of Loss”) after such IDP Hardware has been shipped by Company or its agents, except for the Customer’s normal exposure to dust, vibration, and outdoor operating conditions commonly encountered in excavation work shall not be deemed misuse or environmental damage, provided the equipment has been installed and used in accordance with the agreement and Company’s specifications. If an Event of Loss shall occur with respect to any IDP Hardware, Customer shall promptly and fully notify Company thereof. On the Service fee payment date following such notice, Customer shall pay to Company an amount equal to the Service fee or other payments applicable to such IDP Hardware then due and payable, plus a sum equal to the Stipulated Loss Value of such IDP Hardware as of that date. “Stipulated Loss Value” shall be determined by the then current list price for functionally equivalent Hardware. Upon payment of the Stipulated Loss Value, Company will provide Customer with replacement units of the IDP Hardware, provided, however, that the fees applicable to such replacement IDP Hardware and related Services shall be based on Company’s then current published rates, unless otherwise expressly agreed in writing.
6. Insurance
Customer at its own election can self-insure the IDP Hardware, or can obtain and maintain, at its own expense, property damage and liability insurance and insurance against loss or damage to the IDP Hardware including, without limitation, loss by fire (including so-called extended coverage), theft and such other risks of loss as are required on the type of IDP Hardware provided hereunder and by businesses of the type in which Customer is engaged. Regardless of whether Customer purchases such insurance, Customer will be liable to Company for any IDP Hardware losses, including any losses in transit when such IDP Hardware is being returned to Company after termination of the Term, based on the Stipulated Loss Value defined above.
7. Possession Pledge
Without the prior written consent of Company, Customer shall not (i) sublease the IDP Hardware, provided that Customer may, without such consent, permit, any parent or subsidiary of Customer to use the IDP Hardware in the ordinary course of business; (ii) create or incur any lien or encumbrance with respect to the IDP Hardware; or (iii) permit the IDP Hardware to be removed outside of the United States or Canada.
8. Limited Hardware Warranty for IDP Hardware
Company warrants that the serialized (i.e., tracked by Company using unique serial numbers) IDP Hardware elements of any Company Offerings delivered by Company or its agents to Customer as a IDP Hardware under this Addendum shall be free from all material defects in workmanship under normal use and service for the Initial Term (i.e., 3 years). Provided that such IDP Hardware is used and handled by Customer as intended and in accordance with this Addendum, and that Customer provides Company with notice within the applicable warranty coverage period, as Customer’s sole and exclusive remedy, Company will replace any failed or functionally impaired IDP Hardware with equivalent IDP Hardware in terms of performance and functionality. Company hardware Warranty Coverage shall be provided solely to the extent expressly set forth in this Agreement, an applicable Addendum, Quote, Order, Sales Order, Statement of Work, warranty plan, or other written instrument accepted by Company. No Warranty Coverage shall be implied by course of dealing, course of performance, usage of trade, invoice practice, purchase order, or other communication unless expressly approved in writing by Company. Warranty Coverage is required for Hardware leased from Company, including Hardware provided under IDP Hardware. Unless otherwise expressly stated in the applicable Order, such required Warranty Coverage shall be included in the applicable Fees for the IDP Hardware or related Services, or separately invoiced as warranty fees in connection with such Fees. These warranties do not apply to batteries and other ancillary components and ordinary wear items (e.g., cables, brackets, cradles, protective cases, etc.) and any IDP Hardware that has been misused, altered, willfully abused or that has been subject to water or other environmental damage or that has been damaged due to improper installation by Customer or its agents. The Customer’s normal exposure to dust, vibration, and outdoor operating conditions commonly encountered in excavation work shall not be deemed misuse or environmental damage, provided the equipment has been installed and used in accordance with the agreement and Company’s specifications. IDP Hardware installations must follow Company’s equipment-specific installation guidelines to qualify for the foregoing warranty. If IDP Hardware is determined by Company to be damaged due to any of the aforementioned causes, Customer will be charged the price of a replacement unit plus shipping and handling. Return of any IDP Hardware requires a Return Material Authorization (“RMA”) number. All RMAs must be pre-authorized by Company Customer Care at: E-mail: Customercare@Companysystems.com or Phone: 1(877) THE-EVIR.
9. Installation
Company will work with Customer to develop an efficient installation schedule. Should Customer fail to make a vehicle for which IDP Hardware has been ordered available at the agreed-upon schedule, Company’s obligation to install such IDP Hardware shall expire, and any installation costs thereafter shall be at Customer’s expense, using a Company-approved installer. Any failure to install ordered IDP Hardware shall not relieve Customer of its obligation to pay the corresponding service fees for such IDP Hardware, and Service billing shall commence in accordance with Section 13.1.1 of the Agreement.
10. IDP Hardware Upgrades after Initial Term
To be eligible for hardware upgrades to a new generation of functionally equivalent hardware due to obsolescence after the initial three-year term, Company reserves the right to require the Customer to enter into a new three (3) year agreement. Any replacement or upgrade of IDP Hardware during any Renewal Term shall be subject to Company’s then-current published rates for such Hardware and Services and shall not be based on rates applicable during any prior Term. Obsolescence is defined as equipment that no longer functions in conformance with its initial intended use due to technological reasons. Customer can also elect to receive annual hardware updates within their active Term, at a reduced cost, to ensure access to the latest supported technology without waiting for formal obsolescence.
© Zonar Systems, Inc. — incorporated by reference into your Sales Order.