1. Equipment. Groove agrees to provide the Equipment set forth on Schedule 1 to the Subscription Agreement entered into among Groove, Assignee and the Customer identified therein (“Agreement”), meaning all such Customers jointly and severally if more than one ("Customer", “you”, “your”). The words “we”, “us” and “our” refer to the Assignee and its Transferees (as hereinafter defined), if any. Capitalized terms not otherwise defined in these Master Terms and Conditions shall have the meanings given them in the Agreement.
2. Payment: We shall have no liability under this Agreement whatsoever until the satisfaction in our sole discretion of all conditions we may specify including our receipt of all documents we specify and evidence satisfactory to us in the form of a telephone audit, physical inspection or otherwise that the Equipment and all components thereof have been received, are in satisfactory condition and you have accepted the Equipment for all purposes under this Agreement and the Provider Agreement. You agree to pay us the Monthly Usage Fee specified in Section 3 of the Agreement (each a “Payment”) and shown on Schedule 1 to the Agreement for each month during the Term and all Additional Fees and other amounts that become due from time to time under this Agreement. The defined term “Term” shall include any holdover or Renewal Term whether entered into pursuant to the terms of Section 13 below or otherwise. You agree to pay all Fees pursuant to a form authorizing us to make ACH debits from a bank account maintained by you pursuant to a form entered into by you contemporaneously with you entering into this Agreement and you agree to maintain such authorization in place at all times during the Term. All amounts received from you under this Agreement shall be applied to amounts owed by you hereunder as we determine in our sole discretion.
3. Collection Charges: Whenever any amount due under this Agreement is not made when due, you will upon our demand pay us the following, or if less, the maximum allowed by applicable law: (a) a late charge equal to the greater of 10% of such amount or $25, and (b) a charge of $30 for each check returned or ACH debit not honored for any reason and (c) if we have had to perform collection activities in connection with such late payment, our specified collection charges then in effect for such activities. The foregoing will not be construed as interest but as reimbursement to us to cover administrative and overhead expenses related to the processing and collection of the late amount.
4. Agency and Selection of Equipment: You agree that we are the sole owner of the Equipment, that you will at your sole cost and expense keep the Equipment free and clear of all liens and encumbrances except for those placed thereon by us and give us prompt written notice of any claim against the Equipment. It is the intent of both parties that this Agreement qualify as a statutory finance lease under Article 2A of the Uniform Commercial Code (“UCC”) and you waive any right you may have under Sections 2A-303 and 2A-508 through 2A-522 of the UCC. You acknowledge that you have selected both the Equipment and Groove as the supplier and we have not participated in their selection and we have not manufactured or supplied the Equipment. You agree that no representative of the manufacturer of the Equipment (“Manufacturer”) or Groove is acting on our behalf.
5. Warranties and Limitation of Liability; Non-Cancelable Agreement: WE, AND EXCEPT AS SET FORTH BELOW IN SECTION 8 GROOVE, MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION,THE DESIGN OR CONDITION OF THE EQUIPMENT OR ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE WILL HAVE NO LIABILITY BY REASON OF ANY ACT OR OMISSION RELATING TO THE EQUIPMENT OR ITS, DELIVERY, INSTALLATION, MAINTENANCE, OPERATION, PERFORMANCE, OR USE, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOST REVENUE OR LOST PROFITS. CUSTOMER UNDERSTANDS THAT ASSIGNEE IS A SEPARATE AND INDEPENDENT COMPANY FROM GROOVE OR ANY VENDOR, MANUFACTURER, DISTRIBUTOR OR LICENSOR OF SOFTWARE, AND THAT NONE OF THEM NOR ANY AGENT OR EMPLOYEE OF ANY OF THEM IS ASSIGNEE’S AGENT. CUSTOMER AGREES THAT NO REPRESENTATION, GUARANTEE OR WARRANTY BY ANY SUCH ENTITY OR PERSON IS BINDING ON ASSIGNEE, AND NO BREACH BY ANY SUCH ENTITY OR PERSON WILL EXCUSE OR OTHERWISE AFFECT CUSTOMER’S OBLIGATIONS TO ASSIGNEE. CUSTOMER AGREES THAT THIS AGREEMENT INCLUDES PRODUCT(S) AND SERVICE(S) PROVIDED BY THIRD-PARTIES, AND NEITHER ASSIGNEE NOR GROOVE HAS ANY CONTROL OVER ANY THIRD-PARTY PERFORMANCE. NEITHER ASSIGNEE NOR GROOVE WILL HAVE ANY LIABILITY BY REASON OF ANY ACT OR OMMISSION RELATING TO ANY THIRD-PARTY PRODUCT, SERVICE, OR PERFORMANCE YOU ALSO ACKOWLEDGE AND AGREE THAT YOU HAVE FULLY INSPECTED AND ACCEPTED THE EQUIPMENT HEREUNDER AND THE EQUIPMENT IS IN GOOD CONDITION AND TO YOUR COMPLETE SATISFACTION. Assignee and, except as provided in Section 8 below, Groove, shall have no liability to Customer for any claim, loss or damage (“Loss”) directly, indirectly, incidentally or consequentially arising from, connected with or caused by, THE EQUIPMENT, THE Agreement, or any PROVIDER Services, by any inadequacy thereof or deficiency or defect therein, by any incident whatsoever in connection therewith, arising in contract, strict liability, negligence or otherwise, or in any way related to or arising out of this Agreement or the PROVIDER Agreement. THIS AGREEMENT IS IRREVOCABLE FOR THE FULL TERM. YOUR OBLIGATION TO PAY ALL AMOUNTS PAYABLE BY YOU UNDER THIS AGREEMENT APART FROM THE PROVIDER FEES, IS ABSOLUTE AND UNCONDITIONAL AND WILL NOT BE SUBJECT TO ANY ABATEMENT, REDUCTION, SETOFF, DEFENSE, COUNTERCLAIM, INTERRUPTION, DEFERMENT OR RECOUPMENT FOR ANY REASON WHATSOEVER, INCLUDING ANY DEFECT IN THE EQUIPMENT OR ANY CLAIM YOU MAY HAVE AGAINST PROVIDER(S) UNDER THE PROVIDER AGREEMENT(S) OR AGAINST GROOVE WITH RESPECT TO ANY CLAIM ARISING AGAINST GROOVE UNDER SECTION 6 OR SECTION 8 BELOW OR OTHERWISE.
6. Receipt and Installation of Equipment. Upon your receipt of the Equipment, you shall be responsible for any loss or damage to the Equipment. Groove will install the Equipment as set forth in the “Statement of Work” on the Proposal. Groove’s obligations under this Agreement, which includes the Proposal, are limited by and do not exceed the Statement of Work. Any changes to the Statement of Work must be agreed to in writing by both Customer and Groove. Any changes subsequently agreed to in writing by shall not be modified or amended except in writing signed by authorized representatives of both Customer and Groove. Groove agrees to repair or refinish any surface of the Client’s property that is materially damaged during the installation of Groove’s equipment; provided that such damage is (i) directly caused by Groove or any of its agents, representatives, employees, contractors, subcontractors, or invitees and (ii) reported in writing to Groove within 30 days after the Completion Date. If Groove fails to repair or refinish any such damage within a commercially reasonable time, Client may repair or refinish such damage and cause Groove to reimburse Client for reasonable costs and expenses incurred in such repair or refinishing. If you are not the owner of the building or premises where the Equipment installation is to be performed, you shall obtain any and all necessary approvals, such as approval from the landlord, prior to Groove’s commencement of the Equipment installation. You acknowledge that installation of a satellite system may involve modifications to the building structure. While modifications are often minor, standard professional installation for satellite television services often includes, for example, drilling holes to run cable and attach a dish securely to the outside of the structure. Structural modifications may be forbidden by the terms of your lease, rental agreement, or other agreement and may require approval from parties other than you. Neither Assignee nor Groove shall be responsible or liable for any costs, expenses, damages, etc., resulting from the violation of your lease, rental agreement, or other agreement. You agree to indemnify and hold harmless Assignee and Groove, and any of its sub-contractors or agents, against claims for costs, expenses, damages, etc., resulting from or related to any unauthorized or unapproved installation of the Equipment.
7. Use; Maintenance; Return of Equipment: You agree that the Equipment will be used solely for business or commercial purposes. You will not alter, modify or make additions or improvements to the Equipment without our and Groove’s prior written consent. Any additions to the Equipment shall become our property. You agree to provide us and Groove access to inspect the Equipment. In the event Groove for any reason fails to discharge its obligations under Section 8 below, you will, at your sole expense, maintain the Equipment in good operating condition and repair as specified by its Manufacturer using in every case Manufacturer approved replacement parts. You agree to maintain the Equipment’ appearance, free of nicks, dents, tears and other blemishes and protect the Equipment from deterioration, other than normal wear and tear from proper use. Upon the expiration of the Term or other termination of this Agreement, Groove may, in its sole discretion, remove all or any part of the Equipment and you shall provide reasonable access to the subject premises to enable Groove to do so.
8. Warranties. During either the first year or length of any applicable manufacturer warranty, whichever is longer,Groove warrants the replacement of any defective portion of the Equipment. Groove’s warranty procedures require prompt notice of any defect and your participation in any verbal troubleshooting a problem with Groove’s representatives. If the problem is not resolved, Groove will ship a replacement Equipment component to you for you to install and you shall at your expense return to Groove the defective Equipment component. If you fail to return the defective Equipment component in question within 30 days of your receipt of the replacement Equipment component, you will be liable for and promptly pay upon Groove’s submission of its invoice, the replacement cost as determined by Groove of the defective Equipment component in question. Groove’s warranty as set forth in this Section 8 excludes defects due to Acts of God, intentional misconduct, negligence, loss or theft. The replacement Equipment component will be provided by Groove as approved by us.
9. Taxes and Fees: You agree to pay when due, and to indemnify and hold us and Groove harmless from, all taxes, fees, fines and any related interest and penalties relating to this Agreement (including but not limited to service cancellation fees, late penalties, pay-per-view programming, etc.) (including those arising out of the provision of the Provider Services) and the Equipment (“Taxes”) or to reimburse us on our demand for those Taxes we agree, in our sole discretion, to pay on your behalf. If any taxing authority requires any Taxes to be paid in advance, you authorize us to advance the Tax and increase the Fees by such amount and increase the amount of each Payment proportionately. With respect to personal property and any other Tax we have elected to pay directly on your behalf, you also agree to pay to us processing fees of ours. You agree to pay us fees in amount in effect from time to time in connection with the documentation of this Agreement and any site inspection and lien search.
10. Risk of Loss; Indemnity; Insurance: You are responsible for any loss, damage or destruction of the Equipment. No such loss, damage or destruction will relieve you from the payment obligations under this Agreement. You agree to promptly notify us in writing of any loss, damage or destruction and you will then at our election promptly repair the Equipment at your sole cost and expense or pay to us in addition to all amounts then due and owing, the total of all contractually required but unpaid Payments for the Term plus our residual interest in the Equipment, all discounted to their then present value at three percent (3%) per annum. Any proceeds of insurance will be paid to us and credited to any amount owed by you hereunder. You agree to indemnify and hold Groove and us, our members, managers, directors, officers and employees and those of Groove harmless from and against any and all claims, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, arising out of your selection, possession, operation, use or disposition of the Equipment and from the Provider Services. During the Term, you will, at your expense, procure and maintain comprehensive general liability and casualty insurance acceptable to us on the Equipment. If requested by us, each insurance policy will name us as additional insured and loss payee and in such circumstance you will furnish to us a certificate of insurance that such insurance coverage is in effect. If you do not provide us with acceptable evidence of insurance, we may, but will not be required to, buy such insurance for our sole benefit and add a charge to the Payments which will include all costs associated with obtaining such insurance, including (i) premium expense, and (ii) fees for billing and other administrative services.
11. Assignment; Representations & Warranties: You agree that without our prior written consent, you will not assign or transfer your rights under this Agreement, or sublease or permit the Equipment to be used by anyone other than you. We may assign this Agreement, in whole or in part, without notice to you or your consent. You agree that the transferee (“Transferee”) will have the same rights and benefits that we have now and will not have to perform our obligations. You agree that the rights of the Transferee will not be subject to any claims, defenses or set offs that you may have against us, Groove or Provider. Without limiting the foregoing, Customer acknowledges and agrees that Groove may assign its rights and obligations under this Agreement and may enter into agreements in the name and for the benefit of Customer as necessary to perform the services as provided herein. You represent and warrant to us that all information conveyed to us in connection with this Agreement and all related documents whether by you, a guarantor, the supplier or any other person, is true, accurate, complete and not misleading. If you are entity, the person executing this Agreement on your behalf represents to us they are authorized to do so making the Agreement the valid and binding act of the entity.
12. Default; Remedies: If any one of the following events occurs, you will be in default and we can exercise any of the remedies described below: (i) you fail to pay any Payment or other amount due under this Agreement when due, (ii) you cease doing business as a going concern, make an assignment for the benefit of creditors, admit your inability to pay your debts as they become due or are insolvent, or you file or have filed against you a petition under the Bankruptcy Code, (iii) you breach any covenant contained in this Agreement or any representation or warranty made in connection with this Agreement was false or misleading when made, or (iv) any guarantor of this Agreement defaults on any obligation to us or any of the above-listed events of default occur with respect to any guarantor. Upon the occurrence of a default, we may at our option do any or all of the following: (a) by notice to you, terminate this Agreement; (b) whether or not this Agreement is so terminated, take possession of the Equipment, and for such purpose, enter upon any premises without liability for so doing; you irrevocably waive to the fullest extent permitted by law any bonds, surety or security required of us by statute, court rule or otherwise in the event we seek to take possession of the Equipment, (c) declare all sums due and to become due hereunder immediately due and payable together with our residual interest in the Equipment, all such accelerated sums to be discounted to their then present value using a discount rate of three per cent (3%) per annum as calculated by us; (d) sell, dispose of, hold, use or lease any of the Equipment; (e) exercise any other right or remedy which may be available to us under the UCC or other applicable law including without limitation the right to recover damages for breach hereof. In the event we are required to enforce the Agreement, you are responsible for reimbursing us for all costs we incur including our attorneys’ fees and all costs of repossession, repair, storage and remarketing of the Equipment. The rights afforded us in this Agreement are in addition to any rights or remedies provided by law. The selection of one remedy does not preclude the exercise of any other remedy. A waiver of default will not be a waiver of any other or subsequent default.
13. Term and Automatic Renewal: The Initial Term will automatically renew for successive one year Renewal Terms unless either you or Groove sends written notice to the other parties hereto at least 180 days (but not more than 360 days) before the expiration of the Initial Term or any Renewal Term, as applicable, that you or Groove, as applicable, do not want to renew the Agreement, in which case you shall return the Equipment as specified in Section 7 above. During any Renewal Term, the payments under this Agreement will be the highest amount payable during the Term.
14. Governing Law: THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND INTERPRETED UNDER THE LAWS OF THE STATE OF UTAH WITHOUT REFERENCE TO ITS PRINCIPLES OF CONFLICTS OF LAWS. YOU CONSENT TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE STATE OF UTAH IN ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT AND YOU AGREE THAT NEITHER YOU, GROOVE NOR US WILL BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY SUCH ACTION OR PROCEEDING. YOU WAIVE ANY OBJECTION BASED ON IMPROPER VENUE AND/OR FORUM NON CONVENIENS WITH RESPECT TO ANY SUCH ACTION OR PROCEEDING AND THE PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN ANY SUCH ACTION OR PROCEEDING.
15. Pass Through of Provider Fees: The transaction evidenced by the Agreement provides for the collection of the Provider Fees owed by Customer to Provider as a matter of administrative convenience only which Provider Fees are simply passed through to Provider if and to the extent collected by Assignee. Each Total Monthly Fee combines amounts owed to Assignee with the Provider Fees owed Provider but except as otherwise specifically set forth in the Agreement, Customer’s obligations with respect to the Provider Fees are governed solely and exclusively by the Provider Agreement. Customer’s obligations with respect to all Monthly Usage Fees and Additional Fees is governed solely and exclusively by the Agreement. Customer acknowledges that either Assignee or Provider may terminate this pass through billing arrangement at any time without liability to Customer for doing so. Customer understands and agrees that so long as the pass through billing arrangement remains in effect all amounts received by Assignee may be applied by Assignee first to amounts owed by Customer to Assignee under the Agreement, with any balance passed through to Provider and then only so long as no event of default has occurred and is continuing under the Agreement. Unless otherwise expressly stated in any payoff notice, any payoff amount quoted by Assignee or its Transferees shall not be deemed to include any Provider Fees then due and owing or to become due, and Customer’s obligation to pay such Provider Fees (if any) shall survive any such payoff. In the event this Agreement is terminated, then the pass through billing arrangement with respect to Provider Fees shall be deemed to automatically terminate (unless otherwise expressly agreed in writing by Assignee).
16. General Provisions: All of your covenants herein will survive the termination of this Agreement and the return of the Equipment. Any amount not paid when due hereunder shall accrue interest at the lower of 16% per annum or the highest rate allowed by applicable law if less and paid to us upon demand. You agree to provide us during the Term with updated financial statements and copies of your tax returns as we may request from time to time. If this Agreement is deemed to be a lease intended as security, you hereby grant to us a security interest in the Equipment, and all proceeds, as security for all of your indebtedness and obligations owing under this Agreement. You grant us the irrevocable right to make such filings under the Uniform Commercial Code or other law naming you as debtor as we deem necessary to establish on a precautionary basis or otherwise to establish or perfect our interest in the Equipment. In the event of any conflict between the provisions of any Agreement and any Provider Agreement, the provisions of this Agreement shall prevail. You agree that by providing us with an email address or a telephone number for a cellular or wireless device, you expressly consent to receiving communications including voice and text messages from us or our affiliates or assigns at that number or email address, and this express consent applies to each such email address or telephone number that you provide to us now or in the future and permits such calls and emails regardless of their purpose. These calls and messages may incur access fees from your internet or wireless provider. Section headings are for convenience and are not a part of this Agreement. This Agreement will be binding upon and inure to the benefit of the heirs, executors, administrators, successors and permitted assigns of the parties hereto. This Agreement sets forth the entire understanding of the parties with respect to its subject matter and may only be amended by a written instrument executed by both you and us and any other purported amendment shall be void. This Agreement may be executed in separate counterparts which together shall constitute one and the same instrument. Any notice given under this Agreement shall be in writing and be deemed given 2 business days after being delivered to the US Postal Service or a reputable overnight delivery service, postage prepaid, addressed to the recipient at its address set forth in the Agreement or such other address as a party may hereafter designate by written notice. A facsimile or other image of this Agreement shall be admissible in any action or proceeding relating to this Agreement and shall be deemed an original for all purposes. You agree this Agreement may be signed electronically pursuant to the Electronic Signatures in Global and National Commerce Act and other applicable law. Any restrictive endorsement on any check you give us in payment of any amount due hereunder shall be void. You may not prepay this Agreement without our prior written consent. Time is of the essence with respect to your obligations under this Agreement. Only the copy of this Agreement marked as the “sole original” or similar language by us or our designee is the chattel paper original of this Equipment Finance Agreement (“EFA”).