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AGREEMENT. You want us to pay Vendor for the equipment referenced herein (“Equipment”) and you agree to pay the amounts payable under the terms of this “Agreement” (“Agreement”) each month by the due date. This Agreement will begin on the date the Equipment is delivered to you or any later date we designate. We may charge you a reasonable fee to cover documentation and investigation costs. If any amount payable to us is no paid when due, you will pay a late charge equal to the greater of: 1) ten (10) cents for each dollar overdue or twenty-six dollars ($26.00); or 2) the highest lawful charge, if less. Any security deposit will be commingled with our assets, will not earn interest, and will be returned at the end of the term, provided you are not in default. All payments due hereunder shall be made payable to our servicing agent, Innovative Communications Systems, Inc. and remitted to our servicing agent at 10430 Gulfdale Street, San Antonio, Texas 78216. Our servicing agent will ensure that all payments received by them are properly credited to amounts due hereunder as well as to amounts due under your Masters Services Agreement with Vendor and are posted to your account within one (1) business day of receipt of your payment by our servicing agent.
NET AGREEMENT. THIS AGREEMENT IS NON-CANCELLABLE FOR THE ENTIRE AGREEMENT TERM. YOU UNDERSTAND WE ARE PAYING FOR THE EQUIPMENT BASED ON YOUR UNCONDITIONAL ACCEPTANCE OF IT AND YOUR PROMISE TO PAY US UNDER THE TERMS OF THIS AGREEMENT, WITHOUT SET-OFF FOR ANY REASON, EVEN IF THE EQUIPMENT DOES NOT WORK OR IS DAMAGED, EVEN IF IT IS NOT YOUR FAULT.
EQUIPMENT USE. You will keep the Equipment in good working order, use it for business purposes only, and not modify or move it from its initial location without our consent. You must resolve any disputes you may have concerning the Equipment with the manufacturer or Vendor.
SOFTWARE/DATA. Except as provided in this paragraph, references to “Equipment” include any software referenced above or installed on the Equipment. We do not own the software and cannot transfer any interest in it to you. We are not responsible for the software or the obligations of you or the licensor under any license agreement. You are solely responsible for protecting and removing any confidential data/images stored on the Equipment prior to its return for any reason.
NO WARRANTY. WE MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANT ABILITY OR FITNESS FOR A PARTICULAR PURPOSE. YOU HAVE ACCEPTED THE EQUIPMENT “AS-IS”. YOU CHOSE THE EQUIPMENT, THE VENDOR AND ANY/ALL SERVICE PROVIDER(S) BASED ON YOUR JUDGMENT. YOU MAY CONTACT YOUR VENDOR FOR A STATEMENT OF THE WARRANTIES, IF ANY, THAT THE MANUFACTURER OR VENDOR IS PROVIDING. ASSIGNMENT. You may not sell, assign or sublease the Equipment or this Agreement without our written consent. We may sell or assign this Agreement or our rights in the Equipment, in whole or in part, to a third party without notice to you. You agree that if we do so, the assignee will have our rights but will not be subject to any claim, defense, or set-off assert able by you against us or anyone else.
LAW/FORUM. This Agreement and any claim related to this Agreement will be governed by Texas law. Any dispute will be adjudicated in a state or federal court located in Bexar County, Texas. You consent to personal jurisdiction and venue in such courts and waive transfer of venue. Each party waives any right to a jury trial.
LOSS OR DAMAGE. You are responsible for any damage to or loss of the Equipment. No such loss or damage will relieve you from your payment obligations here under. We are not responsible for, and you will indemnify us against, any claims, losses or damages, including attorney fees, in any way relating to the Equipment. In no event will we be liable for any consequential or indirect damages.
INSURANCE. You agree to maintain comprehensive liability insurance acceptable to us. You also agree to: 1) keep the Equipment fully insured against loss at its replacement cost, with us named as loss payee; and 2) provide proof of insurance satisfactory to us no later than 30 days following the commencement of this Agreement, and thereafter upon our written request. If you fail to maintain property loss insurance satisfactory to us and/or you fail to timely provide proof of such insurance, we have the option, but not the obligation, to secure property loss insurance on the Equipment from a carrier of our choosing in such forms and amounts as we deem reasonable to protect our interests. If we secure insurance on the Equipment, we will not name you as an insured party, your interests may not be fully protected, and you will reimburse us for the premium which may be higher than the premium you would pay if you obtained insurance, and which may result in a profit to us through an investment in reinsurance. If you are current in all of your obligations under the Agreement at the time of loss, any insurance proceeds received will be applied, at our option, to repair or replace the Equipment, or to pay the remaining payments due or to become due under this Agreement, plus our booked residual.
TAXES. We will prepare, file, bill, collect and pay all property taxes and fees relating to the Equipment and this Agreement for you. For providing this service, you agree to pay us, in addition to the amount of taxes and fees you owe on the Equipment, an annual fee equal to the greater of (i) $250.00 or (ii) two and one-half percent (2 ½%) of the original cash value of the Equipment within ten (10) days of receipt of our invoice therefore.
OWNERSHIP. You acknowledge that we own the Equipment until such time after the expiration of the Term, if any that you elect to purchase the Equipment from us at its then fair market value. Until such purchase by you, your rights to use and enjoy the Equipment are as a lessee pursuant to the terms of this Agreement.
DEFAULT AND REMEDIES. If you do not pay any sum within 15 days after its due date, or if you breach any other term of this Agreement or any other agreement with us, you will be in default, and we may require that you return the Equipment to us at your expense and pay us: 1) all past due amounts and 2) all remaining payments for the unexpired term, plus our booked residual. We may also use all other legal remedies available to us, including disabling or repossessing the Equipment. You agree to pay all our costs and expenses, including reasonable attorney fees, incurred in enforcing this Agreement. You also agree to pay the interest on all past due amounts, from the due date thereof, at 1.5% per month.
UCC. You agree that this Agreement is (and or shall be treated as) an “Operating Lease” as that term is defined in Article 2A of the Uniform Commercial Code (“UCC”). You agree to forgo the rights and remedies provided under section 2A-303 and 2A-507 through 522 of Article 2A of the UCC.
COLLATERAL ASSIGNMENT. We have collaterally assigned this Agreement and our rights under this Agreement to The Bank of San Antonio (“Bank”), and granted the Bank a security interest in this Agreement and our rights here under, as security for debts we now or later may owe the Bank. Until you are notified by the Bank, payment under this Agreement should be made to us. When and if you are so notified by the Bank, all of your payments under this Agreement are to be made directly to the Bank at 8000 IH-10 West, Suite 1100, San Antonio, TX 78230. Unless you are notified otherwise by the Bank, we remain responsible to you to fulfill our obligations under this Agreement, and the Bank has no obligations under this Agreement. However, the Bank is entitled to all protections under this Agreement that we have, for example, the Bank may rely on your waivers of warranties, and on your acceptance of the equipment. If you receive a Purchase Option Letter, be sure the letter shows that the Bank approved the letter, otherwise the letter is not valid against the Bank; the Bank has a security interest in the equipment you are leasing. YOU MUST GIVE A COPY OF ANY NOTICE THAT THE EQUIPMENT IS NOT ACCEPTABLE TO YOU TO THE BANK AT THE SAME TIME YOU GIVE THE NOTICE TO US OR THE BANK WILL NOT BE BOUND BY YOUR NOTICE. YOU AND WE MAY NOT MODIFY THIS AGREEMENT WITHOUT THE BANK’S PRIOR WRITTEN CONSENT.
RESOLUTION. If you are not an individual, we may ask you to provide a corporate resolution in a form reasonably acceptable to us authorizing this transaction and identifying the person authorized by you to execute this Agreement in your name and on your behalf yourself.
MISCELLANEOUS. This Agreement is the entire agreement between you and us and supersedes any prior representation or agreements, including any purchase orders. Amounts payable under this Agreement may include a profit to us. The parties agree that the original of this Agreement for enforcement and perfection purposes shall be that paper copy which: (A) bears (i) the original or a facsimile of your manually applied signature, or (ii) a stamped or electronically applied replica of your signature or other indication of your intent to enter into the Agreement, and (B) bears the original of your manually applied signature. The parties agree that such original shall be the sole record- constituting -chattel paper- under the UCC. You agree to assist us in the filing of any forms necessary to perfect our security interest in the Equipment. Any change must be in a writing signed by both parties.
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