These POS Hardware Lease Terms (these “Lease Terms”) are a binding contract between Cake and Operator governing Operator’s lease of certain point of sale-related hardware from Cake and are effective with respect to particular Leased Hardware (as defined below) as of the date of the Order for that Leased Hardware (the “Effective Date”). These Lease Terms are incorporated by reference into the agreement between Cake and Operator that includes the Operator Terms and Conditions (the “Operator Terms”) and other terms specified in the Operator Terms as constituting part of the Agreement. Any capitalized terms not defined in these Lease Terms have the meaning specified in the Operator Terms. The parties agree as follows:
1. Lease. Cake will lease to Operator, and Operator will lease from Cake, the Leased Hardware described in the applicable Order as POS Hardware that is being leased by Cake to Operator (the “Leased Hardware”).
2. Operation. Operator will not remove the Leased Hardware from Operator’s address specified on the Account without Cake’s prior written approval. Operator will allow Cake to enter Operator’s premises at all reasonable times to locate and inspect the state and condition of the Leased Hardware. Operator will, at its expense, keep and maintain the Leased Hardware in a good state of repair, normal wear and tear excepted, and will use the Leased Hardware only for its intended purpose and follow Cake’s instructions regarding the use and maintenance of the Leased Hardware.
3. Rent. In consideration of Operator’s right to possess and use the Leased Hardware during the Lease Period (as defined below), except as otherwise agreed by the parties (as may be specified in the Account Application or applicable Order), Operator will pay the rent at the monthly rate specified in the applicable Order (“Rent”) in advance, on the first day of each calendar month during the Lease Period (with the first month’s rent, prorated, if necessary, due on the Effective Date), without any set-off, offset, abatement or deduction whatsoever in US dollars by ACH or, in to the extent permitted by Cake, credit card payment. Operator will pay interest on all late payments at the rate specified in the Operator Terms. Operator will reimburse Cake for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. Payment of any late charge does not excuse Operator of any default under the Agreement.
4. Equipment Replacement Fee. If, at the expiration of the Lease Period, Operator has not exercised the Purchase Option (as defined below) and Operator does not return the Leased Hardware to Cake in good working order and on the terms and conditions of Section 8(b) within seven (7) days after the expiration of the Lease Period (the “Return Period”), then Operator will be responsible for and agrees to pay the equipment replacement fee(s) (plus any applicable taxes) set forth in the Equipment Replacement Fee Schedule and incorporated herein by reference. Operator hereby authorizes Cake to charge Operator’s payment card and/or Bank Account in connection with such payment immediately following expiration of the Return Period.
5. Limited Warranty. The Hardware Warranty, all limitations on the Hardware Warranty, and other warranty disclaimers in the Agreement apply to the Leased Hardware. THE REMEDIES SET FORTH IN THE OPERATOR TERMS ARE OPERATOR’S SOLE AND EXCLUSIVE REMEDIES AND CAKE’S ENTIRE LIABILITY FOR ANY BREACH OF THE HARDWARE WARRANTY.
6. Title and Risk of Loss. Title to the Leased Hardware remains with Cake throughout the Lease Period, and Operator will acquire no right, title, or interest in the Leased Hardware. Operator will not pledge or encumber the Leased Hardware in any way. Operator will bear all risk of loss, damage, destruction, theft, and condemnation to or of the Leased Hardware from any cause whatsoever (“Loss”) until the Leased Hardware has been returned to Cake (or its designated third party agent). Operator will notify Cake in writing within 10 days of any Loss. In the event of a Loss (as determined by Cake in its reasonable discretion) Operator agrees to pay the applicable equipment replacement fee(s) (plus any applicable taxes) set forth in Equipment Replacement Fee Schedule.
7. Precautionary UCC-1 Financing Statement. Operator authorizes Cake to file precautionary Uniform Commercial Code (“UCC”) financing statements and other similar filings and recordings with respect to the Leased Hardware. Operator will not file any corrective or termination statements or partial releases with respect to any UCCs or other similar filings or recordings filed by Cake in connection with the Leased Hardware except (i) if Cake fails to file a corrective or termination statement or release on request from Operator after the expiration or earlier termination of this Agreement or (ii) with Cake’s consent.
8. End-of-Term Options
(a) Option to Purchase. At the end of the Lease Period, Operator may, at its option, purchase Leased Hardware at the then-current fair market value for the Leased Hardware (the “Purchase Price”) if Operator has performed all of its responsibilities under these Lease Terms and gives written notice to Cake at least 15 days prior to the end of the applicable Lease Period (the “Purchase Option”). The “fair market value” of the Leased Equipment will be mutually agreed upon by both parties. If Operator exercises the Purchase Option but fails to pay the Purchase Price by the end of the Lease Period, the Lease Period and Operator’s obligations under the Agreement relating to the Leased Hardware (and its related authorizations to charge a designated payment card or Bank Account) will continue on a month-to-month basis until Operator pays the Purchase Price, returns the Leased Hardware to Cake in accordance with Section 8(b), or the parties enter into a new non-cancelable Lease Period covering the applicable Leased Hardware. Upon receipt by Cake of the Purchase Price payment, Cake will assign to Operator all ownership interest in the applicable Leased Equipment and the Leased Equipment will be considered Purchased Hardware for purposes of the Agreement. For clarity, the Warranty Period applicable to Leased Hardware that is purchased by Operator is deemed to have started not on the purchase date but on the date when the Leased Equipment was first delivered to Operator.
(b) Obligation to Return Leased Hardware. If Operator does not exercise the Purchase Option, Operator will, at its risk and expense: (a) deinstall, inspect, and properly pack the Leased Hardware; and (b) return the Leased Hardware, freight prepaid, to the address and/or facilities designated by Cake such that the Leased Hardware is received by Cake (or its third party agent) within seven (7) calendar days following the expiration of the Lease Period .
(c) Condition of Leased Hardware upon Return. Operator will cause the Leased Hardware returned for any reason under this Agreement to: (a) be free and clear of all liens (other than liens of Cake) and rights of third parties; (b) be in the same condition as when delivered to Operator, ordinary wear and tear excepted; (c) have all Operator’s insignia or markings removed or painted over and the areas where such markings were removed or painted over refurbished as necessary to blend with adjacent areas; and (d) be in compliance with applicable law.
9. Insurance. During the period that Operator has any Leased Hardware in its possession or control, Operator will, at its own expense, maintain and carry insurance in full force and effect with coverage limits no less than those than are customary in Operator’s industry, taking into account Operator’s size and type of operations.
10. Term and Termination. The term of these Lease Terms as applicable to Leased Equipment specified on a particular Order commences on the Effective Date and continues for the period specified in the applicable Order, unless and until earlier terminated as provided under the Agreement (the “Lease Period”). If Operator is in default of any of the terms and conditions of the Agreement, Cake, and its agents, at Operator’s risk, cost, and expense may, during normal business hours, enter Operator’s premises where the Leased Hardware is stored or used and recover the Leased Hardware.
(a) Survival. Subject to the limitations and other provisions of the Agreement, Sections 3, 4, 6, 8, 9, 10, and 11 of these Lease Terms, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of these Lease Terms or the Agreement.
(b) Amendments. No amendment to, modification of, or rescission, termination, or discharge of these Lease Terms is effective unless it is in writing, identified as an amendment to, or rescission, termination, or discharge of these Lease Terms and signed by an authorized representative of each party.
(c) Cumulative Remedies. All rights and remedies provided in these Lease Terms are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the parties intend that Operator’s rights under the Hardware Warranty are Operator’s exclusive remedies for the events specified under the Hardware Warranty.