EQUIPMENT LEASE ADDENDUM
This Addendum is appended to, a part of and subject to the agreement for Services between Client and FluentStream and the terms of Service posted in FluentStream’s online “Legal Center” at https://fstream.wpengine.com (the “Agreement”). Capitalized terms not otherwise defined herein will have the meanings attributed to them in the Agreement.
- ORDERS. Except as otherwise stated in the Agreement or agreed by FluentStream in writing, as part of the Service terms, Client must order FluentStream approved VoIP equipment (“Equipment”) for lease from FluentStream when submitting its Client Service Order. FluentStream may make changes to Equipment or modify the drawings and specifications relating to Equipment, or substitute Equipment of later design, provided that the changes do not adversely and materially impact Equipment form, fit or function.
- DELIVERY AND INSTALLATION. Client must install the Equipment in accordance with all FluentStream installation instructions and documentation, which shall be provided with the Equipment. In the event that certain equipment requires installation by FluentStream, Client shall provide FluentStream with reasonable access to the Client Premises during Client’s normal business hours.
- LEASE TERM. The term of Client’s lease of the Equipment (the “Equipment Lease Term”) will commence on date on which FluentStream delivers the Equipment to a carrier for shipment to Client, and shall continue coterminously with the term of the Service with which the Equipment will be used.
- TERMINATION. FluentStream may terminate this lease in whole or in part if Client (a) fails to pay any amount owed hereunder or under the Agreement and such failure is not cured within ten (10) days’ notice of such failure from FluentStream to Client; (b) commences or is the subject of any proceeding seeking any reorganization, liquidation, dissolution, receivership, insolvency or any other debtor relief generally under any present or future law, statute, or regulation, unless Client obtains dismissal of such proceeding within thirty (30) days; or (c) Client encumbers, pledges, or otherwise conveys or transfers the Equipment, or any portion thereof, to a third party. FluentStream may also terminate the lease of any item(s) of Equipment if it is required to return or discontinue Equipment by an entity leasing such Equipment to FluentStream. Either party may terminate this lease on thirty (30) day’s prior written notice to the other; provided, that if Client terminates this lease, it shall pay FluentStream all amounts due and owing under this lease, plus all rental amounts for the remainder of any fixed Equipment Lease Term, and unless FluentStream otherwise agrees, Client shall also be deemed to have terminated the Service which was provided using the Equipment.
- CHARGES. The rental and other costs for the Equipment shall be those on your Client Service Order or as may be posted on FluentStream’s website from time to time. Such rental and other costs are exclusive of applicable Taxes and Regulatory Fees, which Taxes and Regulatory Fees shall be separately invoiced to Client. Unless otherwise stated therein or in the applicable Client Service Order, Equipment rental charges shall be invoiced monthly in advance and payable in accordance with Section 5.3 of the Agreement. Client acknowledges that certain Equipment may be leased by FluentStream and subleased to Client, and that FluentStream’s lessor(s) may increase the charges associated with such Equipment from time to time. Client therefore agrees that FluentStream may pass through to Client, and Client shall pay, any increase imposed by FluentStream’s lessor(s).
- The risk of loss of, damage to, or destruction of the Equipment shall be borne by Client. Lessee shall maintain at all times during the Equipment Lease Term, at its own expense, commercial general liability insurance against loss or damage to the Equipment, including, without limitation, loss by fire and hazard (including so- called “all risks and extended coverage”, including windstorms), and theft, in such amounts that shall not be, at any point in time, less than the greater of the full costs that the Client would be obligated to pay to replace the Equipment (“Replacement Value”).
- FluentStream shall be named as an additional insured and loss payee under such policies of insurance. Client shall furnish to FluentStream a certificate of insurance or other evidence reasonably satisfactory to FluentStream that such insurance coverage is in effect and which includes a stipulation that coverages will not be cancelled or diminished without at least ten (10) days prior written notice to FluentStream; provided, however, that FluentStream shall be under no duty either to ascertain the existence of or to examine any such insurance policy or to advise Client in the event such insurance coverage shall not comply with the requirements hereof.
- In the event that the Equipment shall be or become lost, stolen, destroyed, irreparably damaged, or shall be requisitioned or taken over by any governmental authority under the power of eminent domain or otherwise during the Equipment Lease Term (any such occurrence being herein called a “Casualty Occurrence”), Client shall, upon obtaining knowledge of such Casualty Occurrence, promptly provide written notice to FluentStream. On the payment date for next succeeding the Casualty Occurrence, Client shall pay to FluentStream an amount equal to the rent and other charges due on such date plus any other rentals or sums then currently or past due related to such Equipment, plus an amount equal to the Replacement Value of the Equipment, at which time the Equipment Lease Term for such Equipment shall be terminated and no further rent shall be due from Lessee. If the loss exceeds any applicable deductible and Client files a claim for the Casualty Occurrence in accordance with insurer’s policy terms and proper filing is evidenced to FluentStream, Client may continue to pay the rental and other sums due under this lease for such Equipment and defer paying the Replacement Value of such Equipment until the insurer pays the insurance claim to the loss payees and/or additional insureds or rejects it. In any settlement under this Section, Client shall be entitled to a credit (not to exceed the Replacement Value actually paid by the Lessee), for the amount of any proceeds of any insurance or award actually received by FluentStream on account of the Casualty Occurrence.
- ACCESS TO AND USE OF THE EQUIPMENT. During the Equipment Lease Term, Client shall immediately notify FluentStream of any changes in the location of any Equipment leased hereunder. FluentStream and/or its lessor(s) shall have the right to access the Client Premises or other location where the Equipment is located during Client’s normal business hours, upon reasonable advance notice to Client, for purposes of inspection, maintenance, replacement or repossession of such Equipment. Client shall at all times during the Equipment Lease Term maintain the Equipment in good operating condition, reasonable wear and tear excepted, and in accordance with all documentation and instructions provided by FluentStream. Client shall protect the Equipment from tampering, theft, fire, casualty, damage, abuse, and/or unauthorized access.
- REPLACEMENT OF EQUIPMENT. In the event that FluentStream determines, in its sole discretion, to replace Equipment with newer or different models, it shall provide notice to the Client of such decision, along with information regarding the delivery of new Equipment and instructions for the return of existing Equipment. Client agrees that it will comply with such instructions from FluentStream. On or after the second anniversary of the Equipment Lease Term, Client may request that existing Equipment be replaced with new or updated Equipment. FluentStream, in its sole discretion, may agree to the replacement of some or all Equipment, in which event it will provide Client with the terms and conditions (including charges) that will govern the replacement.
- RETURN OF EQUIPMENT. Upon the termination or expiration for any reason of the Service term for the Service with which the Equipment is used, the Equipment Lease Term will terminate. Unless Client has purchased the Equipment as provided for in the Agreement, Client shall immediately upon such termination return the Equipment to FluentStream at the address designated by FluentStream, at Client’s expense, in the same condition as the Equipment was provided to Client, reasonable wear and tear excepted. In the event that FluentStream requires access to the Client Premises to deinstall and retrieve any Equipment, Client shall provide FluentStream with access to the Client Premises during Client’s normal business hours. If Client fails to return Equipment upon termination or expiration of the Equipment Lease Term or to permit FluentStream access to retrieve the Equipment, or if Client returns the Equipment in other than the condition asit was provided to Client, reasonable wear and tear excepted, then at FluentStream’s election, Client shall be responsible for rental fees for all such Equipment at FluentStream’s then-current rates, plus all applicable Taxes and Regulatory Fees until the return of the Equipment as required by this Section, or Client may be deemed to have purchased the Equipment, in which event Client shall pay to FluentStream the amounts invoiced by FluentStream in accordance with the Agreement.
FluentStream Equipment Warranty/Exclusions and Disclaimers:
Client recognizes that FluentStream is a reseller or sublessor of the Equipment (“Third Party Products”). FluentStream provides these Third Party Products on an “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND, unless FluentStream specifies otherwise. However, such Third Party Products may carry their own warranties and FluentStream shall use commercially reasonable efforts to pass through to Client any such warranties to the extent authorized. Exercise of such warranty shall be directly between Client and the third party provider. “Third Party Products” means any products made by a party other than FluentStream, and may include, without limitation, products ordered by Client from third parties. EXCEPT AS REFERENCED AND LIMITED IN THIS SECTION, NEITHER FLUENTSTREAM NOR ITS LICENSORS OR SUPPLIERS MAKES ANY EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE EQUIPMENT. FLUENTSTREAM DOES NOT WARRANT UNINTERRUPTED OR ERROR FREE OPERATION OF EQUIPMENT OR THAT THE EQUIPMENT WILL PREVENT TOLL FRAUD. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FLUENTSTREAM DISCLAIMS ALL IMPLIED OR STATUTORY WARRANTIES RELATED TO THE EQUIPMENT, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE WARRANTY REMEDIES EXPRESSLY REFERENCED HEREIN WILL BE CLIENT’S SOLE AND EXCLUSIVE REMEDIES RELATED TO THE EQUIPMENT.