WITNESSETH:
WHEREAS, the Lessor is engaged in the business of leasing Coin Operated Amusement Machines (COAMs) and related equipment; and
WHEREAS, the Lessee desires to lease certain COAMs and related equipment from the Lessor for use in its business operations;
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
- Definitions.
- Coin Operated Amusement Machines (COAMs). "Coin Operated Amusement Machines" or "COAMs" shall mean and refer to those certain amusement machines, owned and operated by Lessor, which are designed to be operated by the insertion of coins, currency, tokens, or other similar means of payment, and which provide entertainment or amusement to the user thereof. Such machines may include, but are not limited to, skilled games, video games, pinball machines, jukeboxes, and other similar devices as may be determined by Lessor in its sole discretion.
- Lessee. "Lessee" shall mean and refer to the party to this Agreement who is granted the right to use and operate the COAMs on its premises, subject to the terms and conditions set forth herein. Lessee shall be responsible for providing adequate space for the installation and maintenance of the COAMs, as well as for ensuring compliance with all applicable laws, regulations, and insurance requirements pertaining to the operation of such machines.
- Lessor. "Lessor" shall mean and refer to Ariel Amusement Gaming, LLC, a limited liability company duly organized and existing under the laws of the State of Tennessee, having its principal place of business at 3631 Chamblee Tucker Rd. STE A-222, Atlanta, GA 30341, and being the owner and operator of the COAMs subject to this Agreement. Lessor shall have the exclusive right to install, maintain, and remove the COAMs, as well as to determine the types and quantities of machines to be installed at Lessee's premises.
- Term Options. "Term Options" shall mean and refer to the following lease duration and payment options available to Lessee under this Agreement: The Term Option selected by Lessee shall be binding for the duration of the initial term and shall automatically renew for two (2) additional five-year periods, unless terminated in accordance with the provisions set forth in Section 3 of this Agreement. Lessor reserves the right, in its sole discretion, to modify the available Term Options or to offer additional Term Options to Lessee, subject to mutual agreement and execution of a written amendment to this Agreement.
- (a) Term A: A lease term of one (1) year, with a daily payment of Twenty Dollars ($20.00) or a monthly payment of Six Hundred Dollars ($600.00), payable to Lessor in accordance with the payment terms set forth in Section 4 of this Agreement.
- (b) Term B: A lease term of five (5) years, with a daily payment of Ten Dollars ($10.00) or a monthly payment of Three Hundred Dollars ($300.00), payable to Lessor in accordance with the payment terms set forth in Section 4 of this Agreement.
- Lease of Equipment.
- Equipment Description. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, certain Coin Operated Amusement Machines (hereinafter "COAMs") as more particularly described in Schedule A attached hereto and incorporated herein by reference. The COAMs shall at all times remain the sole and exclusive property of Lessor.
- Installation and Maintenance. Lessee shall provide adequate space for Lessor to install and maintain the COAMs at Lessee's premises. Lessor shall have the right to enter Lessee's premises at any reasonable time for the purpose of installing, inspecting, maintaining, repairing, or removing the COAMs. Lessee shall be solely responsible for the maintenance and upkeep of the COAMs during the term of this Agreement. In the event that the COAMs are turned off or not operating at any time during the term of this Agreement, Lessee shall be subject to a fine of Ten Thousand Dollars ($10,000.00), which shall be immediately due and payable to Lessor, unless Lessor has provided prior written consent for such non-operation. Lessee hereby authorizes Lessor to remove any existing COAMs from Lessee's premises, and Lessee agrees to hold Lessor harmless for any damages that may occur during such removal.
- Insurance Requirements. Lessee shall, at its sole cost and expense, procure and maintain in full force and effect throughout the term of this Agreement, a policy of insurance covering the COAMs against all risks of physical loss or damage, including but not limited to fire, theft, vandalism, and malicious mischief. Such insurance shall be in an amount not less than Twenty-Five Thousand Dollars ($25,000.00) per COAM. Lessee shall cause each COAM to be added to Lessee's existing insurance policy as equipment. While Lessee is not required to provide Lessor with a copy of the Certificate of Insurance (COI), Lessee hereby represents and warrants that the COAMs are properly listed and covered under Lessee's insurance policy. In the event that Lessee's insurance does not cover any claim related to the COAMs, or in the event that Lessee fails to add the COAMs to its insurance policy, Lessee shall be solely responsible for any and all damages to the COAMs. Furthermore, if at any time during the term of this Agreement, Lessee fails to maintain the required insurance coverage, Lessee shall be liable to Lessor for a penalty of Five Thousand Dollars ($5,000.00), which shall be due and payable immediately upon Lessor's request. Lessee's failure to comply with the insurance requirements set forth herein shall constitute a material breach of this Agreement.
- Term and Renewal.
- Initial Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of five (5) years therefrom (the "Initial Term"), unless earlier terminated in accordance with the provisions set forth herein. Notwithstanding the foregoing, the Lessor, in its sole discretion, may offer the Lessee the option to select a one (1) year term, subject to the payment of increased daily fees as specified in Section 4.1 hereof.
- Automatic Renewal. Upon expiration of the Initial Term, this Agreement shall automatically renew for two (2) additional five-year periods (each, a "Renewal Term"), unless either party provides written notice of non-renewal to the other party no less than ninety (90) days prior to the expiration of the then-current term. Such notice shall be delivered via registered or certified mail, return receipt requested, to the address specified in Section 11.2 hereof. For the avoidance of doubt, the Lessee's failure to provide timely notice of non-renewal shall result in the automatic renewal of this Agreement for the subsequent Renewal Term, and the Lessee shall be bound by all terms and conditions contained herein for the duration of such Renewal Term.
- Termination.
- Termination by Lessor. Notwithstanding anything to the contrary contained herein, the Lessor shall have the right to terminate this Agreement at any time, with or without cause, upon providing thirty (30) days' written notice to the Lessee. In the event of such termination, the Lessee shall immediately cease use of the Equipment and shall comply with all provisions set forth in Section 3.3.3 hereof.
- Termination by Lessee. The Lessee shall have no right to terminate this Agreement prior to the expiration of the Initial Term or any Renewal Term, except as expressly provided herein or with the prior written consent of the Lessor, which consent may be withheld in the Lessor's sole and absolute discretion.
- Effect of Termination. Upon the expiration or termination of this Agreement for any reason:
- The Lessee shall immediately discontinue all use of the Equipment and shall, at its sole cost and expense, return all Equipment to the Lessor in good condition and working order, ordinary wear and tear excepted;
- The Lessee shall, within thirty (30) days of such expiration or termination, return to the Lessor all Confidential Information and other property belonging to the Lessor;
- The Lessee shall promptly pay to the Lessor all amounts due and payable hereunder, including, without limitation, any unpaid rent, fees, or other charges accrued through the date of termination;
- The Lessor shall have the right to enter upon the Lessee's premises during normal business hours to remove the Equipment, and the Lessee hereby waives any and all claims for damages arising from or related to such removal;
- The Lessee shall continue to be bound by the non-compete and non-solicitation provisions set forth in Section 8 hereof for a period of twenty-four (24) months following the date of termination; and
- Any and all rights granted to the Lessee hereunder shall immediately cease and terminate.
- Survival. The provisions of Sections 3.3.3, 7, 8, 9, 10, 12, 15, and any other provisions which by their nature are intended to survive the expiration or termination of this Agreement shall survive any such expiration or termination and shall continue in full force and effect.
- Payment Terms.
- Payment Schedule. Lessee shall remit payment to Lessor on a daily basis for the use of the Equipment in accordance with the following schedule: The aforementioned payments shall be made without any deduction, setoff, or counterclaim whatsoever. All payments shall be made in United States Dollars and shall be due and payable by 5:00 p.m. Eastern Standard Time on each day during the Term of this Agreement. Lessee hereby acknowledges and agrees that time is of the essence with respect to all payments hereunder.
- Term A: Twenty Dollars ($20.00) per day, payable in advance, for a period of one (1) year; or
- Term B: Ten Dollars ($10.00) per day, payable in advance, for a period of five (5) years.
- Late Payment Penalties. In the event that Lessee fails to make any payment when due hereunder, Lessee shall pay to Lessor, in addition to the amount then due, a late charge equal to five percent (5%) of the overdue amount. Furthermore, any payment not received within five (5) days of its due date shall bear interest at the rate of eighteen percent (18%) per annum, or the maximum rate permitted by applicable law, whichever is less, from the date such payment was due until paid in full. Lessee hereby acknowledges and agrees that such late charge and interest are reasonable liquidated damages to compensate Lessor for its additional administrative costs and expenses resulting from Lessee's failure to make timely payments.
Notwithstanding the foregoing, the payment of such late charge and interest shall not cure or excuse any default by Lessee under this Agreement, nor shall it limit or impair any of Lessor's rights or remedies under this Agreement or applicable law. - Lien on Assets. As security for the prompt and complete payment and performance of all of Lessee's obligations under this Agreement, Lessee hereby grants to Lessor a continuing security interest in and lien upon all of Lessee's assets, including, without limitation, all of Lessee's inventory, equipment, accounts, instruments, chattel paper, documents, general intangibles, deposit accounts, investment property, letter-of-credit rights, supporting obligations, and all proceeds and products of the foregoing (collectively, the "Collateral").
Lessee hereby authorizes Lessor to file such financing statements and other documents, and to take such other actions, as Lessor may deem necessary or advisable to perfect and continue the perfection of Lessor's security interest in the Collateral. Lessee shall execute and deliver to Lessor, at Lessor's request, such instruments, documents, and agreements as Lessor may require to perfect, protect, and maintain Lessor's security interests and rights hereunder.
In the event of any default by Lessee under this Agreement, Lessor shall have all of the rights and remedies of a secured party under the Uniform Commercial Code and other applicable law, including, without limitation, the right to take possession of the Collateral and to dispose of the same in accordance with applicable law. Lessee hereby agrees to assemble the Collateral and make it available to Lessor at such place as Lessor may designate, and to cooperate fully with Lessor in its efforts to realize upon the Collateral.
Lessee further agrees that it shall not sell, assign, transfer, encumber, or otherwise dispose of any of the Collateral without the prior written consent of Lessor. Any such disposition without Lessor's consent shall be null and void and of no force or effect.
The security interest and lien granted herein shall continue in full force and effect until all obligations of Lessee to Lessor under this Agreement have been fully and finally paid and performed. Upon such payment and performance, Lessor shall, at Lessee's expense, release its security interest in and lien upon the Collateral and file such termination statements and other documents as may be necessary to evidence such release.
- Obligations of Lessee.
- Space and Access. Lessee shall, at its sole cost and expense, provide adequate space for Lessor to install and maintain the Coin Operated Amusement Machines (hereinafter "COAMs") at the designated premises. Lessee hereby grants Lessor, its employees, agents, and contractors, full and unrestricted access to the premises at all reasonable times for the purpose of installing, inspecting, maintaining, repairing, and removing the COAMs. Lessee shall ensure that the space provided for the COAMs is clean, safe, and suitable for their intended use, and shall not, without the prior written consent of Lessor, relocate or attempt to relocate any of the COAMs. In the event that Lessee fails to provide adequate space or access for the COAMs, Lessor shall have the right, but not the obligation, to terminate this Agreement immediately and recover any damages resulting from such failure.
- Maintenance and Upkeep. Lessee shall be solely responsible for the day-to-day maintenance and upkeep of the COAMs. This responsibility shall include, but not be limited to, keeping the COAMs clean, free from debris, and in good working order. Lessee shall promptly notify Lessor of any malfunction, damage, or need for repair of the COAMs. Under no circumstances shall Lessee attempt to repair or modify the COAMs without the express written consent of Lessor. Lessee acknowledges and agrees that the COAMs shall remain operational at all times during the term of this Agreement. In the event that the COAMs are turned off or rendered non-operational for any reason whatsoever, except as expressly authorized in writing by a duly authorized representative of Lessor, Lessee shall be subject to a penalty of Ten Thousand Dollars ($10,000.00) per occurrence, payable immediately upon demand by Lessor. Lessee hereby waives any right to contest or dispute the imposition of such penalty.
- Insurance Coverage. Lessee shall, at its sole cost and expense, procure and maintain in full force and effect throughout the term of this Agreement, a comprehensive general liability insurance policy, including property damage coverage, with limits of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate. Such policy shall name Lessor as an additional insured and shall specifically cover the COAMs, each of which is valued at Twenty-Five Thousand Dollars ($25,000.00) per unit. Lessee shall provide Lessor with a certificate of insurance evidencing such coverage upon request. In the event that Lessee fails to obtain or maintain the required insurance coverage, or if such coverage lapses or is cancelled for any reason, Lessee shall be solely responsible for any and all damages to the COAMs, regardless of cause, and shall immediately pay to Lessor the full replacement value of any damaged or destroyed COAMs. Furthermore, in the event that Lessee's insurance coverage does not fully cover any claim related to the COAMs, or if Lessee fails to add the COAMs to its insurance policy as required herein, Lessee shall be solely and fully responsible for any and all damages to the COAMs and shall indemnify and hold Lessor harmless from any and all claims, losses, damages, or expenses arising therefrom. Lessee's failure to comply with the insurance requirements set forth herein shall constitute a material breach of this Agreement, entitling Lessor to pursue any and all remedies available at law or in equity, including but not limited to immediate termination of this Agreement and recovery of all COAMs.
- Obligations of Lessor.
- Installation. Lessor shall, at its sole discretion and Lessee's expense, install the Coin Operated Amusement Machines (COAMs) at Lessee's premises. Lessee hereby grants Lessor and its authorized representatives full and unrestricted access to the premises for the purpose of installation. Lessor shall determine the optimal location for the COAMs within the premises, and Lessee shall not relocate or attempt to relocate any COAM without Lessor's prior written consent. Lessor reserves the right to install additional COAMs or replace existing COAMs at any time during the Term of this Agreement, subject to available space at Lessee's premises. Lessee shall be responsible for all costs associated with the installation, including but not limited to electrical work, carpentry, and any necessary modifications to the premises.
- Maintenance Support. Lessor shall provide electronic maintenance guidance support for the COAMs as follows:
- Lessor shall, at its sole discretion, determine the frequency and extent of maintenance required for the COAMs.
- Lessor shall provide back-end support for service via the internet, WhatsApp, FaceTime, and other electronic means as deemed appropriate by Lessor.
- Lessee shall promptly notify Lessor of any malfunction, damage, or need for repair of any COAM. Upon receipt of such notification, Lessor shall, at its sole discretion, determine the appropriate course of action, which may include repair, replacement, or removal of the affected COAM.
- Lessor shall not be liable for any loss of revenue or other damages incurred by Lessee during any period in which a COAM is inoperable or removed for maintenance or repair.
- Lessor reserves the right to charge Lessee for any repairs or maintenance necessitated by Lessee's negligence or willful misconduct.
- Lessee shall be solely responsible for the day-to-day maintenance and upkeep of the COAMs, including but not limited to cleaning, minor repairs, and ensuring proper operation.
- Lessor shall have the right to remotely access and monitor the COAMs for maintenance and performance optimization purposes.
- Removal of Existing Equipment.
- Lessee hereby authorizes Lessor to remove any existing coin-operated amusement machines or similar equipment from the premises prior to the installation of Lessor's COAMs.
- Lessee expressly waives any claim for damages that may arise from the removal of existing equipment and agrees to hold Lessor harmless from any and all claims, damages, or liabilities resulting from such removal.
- Lessee represents and warrants that it has the authority to authorize the removal of any existing equipment and that such removal does not violate any existing agreements or obligations to third parties.
- In the event that the removal of existing equipment results in any damage to Lessee's premises, Lessor shall not be held responsible for such damage, and Lessee expressly waives any right to seek compensation for such damage from Lessor.
- Lessee shall be solely responsible for terminating any existing agreements or contracts related to the removed equipment and shall indemnify and hold Lessor harmless from any claims or liabilities arising from such termination.
- Lessor reserves the right to dispose of the removed equipment in any manner it deems appropriate, without any obligation to compensate Lessee or any third party for such equipment.
- In the event that Lessee requests the return of any removed equipment, such request must be made in writing within forty-eight (48) hours of removal. Lessor may, at its sole discretion, accommodate such request, provided that Lessee bears all costs associated with the return and reinstallation of the equipment.
- Confidentiality.
- Definition of Confidential Information. For the purposes of this Agreement, "Confidential Information" shall mean any and all non-public, proprietary, or confidential information, whether in oral, written, electronic, or other form, that is disclosed by the Lessor to the Lessee, or to which the Lessee gains access in connection with this Agreement. Such Confidential Information shall include, but not be limited to, trade secrets, business plans, financial information, customer lists, pricing strategies, marketing plans, technical data, product designs, and any other information that the Lessor designates as confidential or that should reasonably be understood to be confidential given the nature of the information and the circumstances of disclosure.
- Non-Disclosure Obligations. The Lessee hereby covenants and agrees that it shall:
- hold and maintain the Confidential Information in strictest confidence;
- not use the Confidential Information for any purpose whatsoever other than as expressly permitted by this Agreement or as necessary for the performance of its obligations hereunder;
- not disclose, divulge, or otherwise communicate any Confidential Information to any third party without the prior written consent of the Lessor;
- limit access to the Confidential Information to those of its officers, directors, employees, agents, and representatives who have a bona fide need to know such information for the purposes of this Agreement and who are bound by confidentiality obligations no less restrictive than those contained herein;
- take all reasonable precautions to prevent unauthorized use, disclosure, or dissemination of the Confidential Information, including, without limitation, implementing and enforcing procedures to safeguard the Confidential Information;
- promptly notify the Lessor in writing of any unauthorized use, disclosure, or dissemination of the Confidential Information of which it becomes aware and take all steps necessary to prevent further unauthorized use, disclosure, or dissemination; and
- cooperate fully with the Lessor in any effort undertaken by the Lessor to enforce its rights in the Confidential Information, including, without limitation, providing reasonable assistance in identifying and pursuing any third party who may have accessed, used, or disclosed the Confidential Information without authorization.
The Lessee acknowledges and agrees that any breach or threatened breach of this Section 7.2 may result in irreparable harm to the Lessor for which there may be no adequate remedy at law. Accordingly, the Lessor shall be entitled, without the necessity of posting a bond or other security, to seek injunctive relief to enforce the provisions of this Agreement, in addition to any other remedies available at law or in equity. - Exceptions. Notwithstanding the foregoing, the non-disclosure obligations set forth in Section 7.2 shall not apply to any information that:
- was in the Lessee's possession prior to disclosure by the Lessor, provided that such information was not obtained, directly or indirectly, from the Lessor under an obligation of confidentiality;
- is or becomes publicly available through no fault of the Lessee;
- is rightfully received by the Lessee from a third party without a duty of confidentiality;
- is independently developed by the Lessee without use of or reference to the Lessor's Confidential Information, as evidenced by contemporaneous written records; or
- is required to be disclosed by law, regulation, or court order, provided that the Lessee gives the Lessor prompt written notice of such requirement prior to disclosure and assists the Lessor in obtaining a protective order or other appropriate relief.
The Lessee shall bear the burden of proving the applicability of any exception set forth in this Section 7.3. The confidentiality obligations set forth herein shall survive the termination or expiration of this Agreement for a period of five (5) years thereafter, or in the case of trade secrets, for so long as such information remains a trade secret under applicable law, whichever is longer. The Lessee hereby acknowledges and agrees that any violation of the provisions of this Section 7 shall constitute a material breach of this Agreement and shall entitle the Lessor to immediately terminate this Agreement and pursue any and all remedies available at law or in equity, including, without limitation, monetary damages, injunctive relief, and specific performance.
- Non-Compete and Non-Solicitation.
- Non-Compete Clause. Lessee hereby covenants and agrees that, during the Term of this Agreement and for a period of five (5) years following the termination or expiration thereof, for any reason whatsoever, Lessee shall not, directly or indirectly, either individually or in partnership or jointly or in conjunction with any Person as principal, agent, employee, shareholder, owner, investor, partner or in any other manner whatsoever, carry on or be engaged in or be concerned with or interested in or advise, lend money to, guarantee the debts or obligations of or permit Lessee's name or any part thereof to be used or employed by any Person engaged in or concerned with or interested in any business which is the same as, or substantially similar to, or in competition with, the business carried on by Lessor during the Term of this Agreement within a radius of fifty (50) miles from any location where Lessor conducts business or has conducted business during the Term of this Agreement.
- Non-Solicitation of Employees. Lessee covenants and agrees that during the Term of this Agreement and for a period of twenty-four (24) months following the termination or expiration thereof, for any reason whatsoever, Lessee shall not, directly or indirectly, either individually or in partnership or jointly or in conjunction with any Person, as principal, agent, employee, shareholder, owner, investor, partner or in any other manner whatsoever: (a) induce or attempt to induce any employee or independent contractor of Lessor to leave the employ or engagement of Lessor; (b) in any way interfere with the relationship between Lessor and any employee or independent contractor thereof; (c) employ or otherwise engage as an employee, independent contractor or otherwise, any employee or independent contractor of Lessor; or (d) induce or attempt to induce any customer, supplier, licensee or other business relation of Lessor to cease doing business with Lessor or in any way interfere with the relationship between any such customer, supplier, licensee or other business relation and Lessor.
- Duration of Restrictions. The parties hereto acknowledge and agree that the restrictions contained in Sections 8.1 and 8.2 are reasonable in the circumstances and necessary to protect the legitimate interests of Lessor. Notwithstanding the foregoing, if any provision contained in this Section 8 shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Section 8, but this Section 8 shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. It is the intention of the parties that if any of the restrictions or covenants contained herein is held to cover a geographic area or to be for a length of time which is not permitted by applicable law, or in any way construed to be too broad or to any extent invalid, such provision shall not be construed to be null, void and of no effect, but to the extent such provision would be valid or enforceable under applicable law, a court of competent jurisdiction shall construe and interpret or reform this Section 8 to provide for a covenant having the maximum enforceable geographic area, time period and other provisions (not greater than those contained herein) as shall be valid and enforceable under such applicable law. Lessee acknowledges and agrees that any breach or threatened breach of the provisions of this Section 8 would cause Lessor to sustain irreparable harm and that monetary damages would not provide an adequate remedy. Accordingly, in addition to any other remedies available to it, Lessor shall be entitled to specific performance and injunctive and other equitable relief to prevent a breach or threatened breach of the provisions of this Section 8.
- Default and Remedies.
- Events of Default. The occurrence of any of the following events shall constitute an event of default (hereinafter "Event of Default") under this Agreement: (a) Failure by Lessee to make any payment required hereunder when due, and such failure continues for a period of five (5) days after written notice thereof from Lessor; (b) Failure by Lessee to perform or observe any other covenant, condition, or agreement to be performed or observed by it hereunder, and such failure continues for a period of ten (10) days after written notice thereof from Lessor; (c) Lessee becomes insolvent, makes an assignment for the benefit of creditors, files a voluntary petition in bankruptcy, is adjudicated bankrupt or insolvent, files a petition seeking for itself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar arrangement under any present or future statute, law, or regulation, or files an answer admitting the material allegations of a petition filed against it in any such proceeding, consents to or acquiesces in the appointment of a trustee, receiver, or liquidator of it or of all or any substantial part of its assets or properties, or if it or its shareholders shall take any action looking to its dissolution or liquidation; (d) Lessee fails to maintain the insurance coverage required under Section 16 of this Agreement; (e) Lessee breaches the exclusivity provision set forth in Section 8.1 of this Agreement; (f) Lessee turns off or ceases operation of the COAMs without prior written consent from Lessor; (g) Lessee fails to properly maintain and upkeep the COAMs as required under Section 5.2 of this Agreement; (h) Any representation or warranty made by Lessee herein or in any document or certificate furnished to the Lessor in connection with this Agreement proves to be false or misleading in any material respect; (i) Lessee attempts to assign, transfer, or encumber this Agreement or any right or interest herein without Lessor's prior written consent.
- Remedies for Default. Upon the occurrence of any Event of Default and at any time thereafter, Lessor may, in its sole discretion, exercise any one or more of the following remedies: (a) Terminate this Agreement immediately upon written notice to Lessee; (b) Enter upon Lessee's premises where the COAMs are located and take immediate possession of and remove the same, all without liability to Lessor for or by reason of such entry or taking of possession, whether for damage to property or otherwise; (c) Sell, dispose of, hold, use or lease the COAMs as Lessor in its sole discretion may decide, without any duty to account to Lessee with respect to such action or inaction or for any proceeds with respect thereto; (d) Declare all sums due and to become due hereunder immediately due and payable; (e) Recover from Lessee all damages, losses, costs, and expenses incurred by Lessor as a result of the Event of Default, including, without limitation, reasonable attorneys' fees and costs; (f) Pursue any other remedy available to Lessor at law or in equity. Notwithstanding the foregoing, upon the occurrence of an Event of Default as described in Section 9.1(f), Lessor shall have the right to immediately impose a fine of Ten Thousand Dollars ($10,000) upon Lessee, which shall be due and payable within five (5) business days of written notice from Lessor.
- Acceleration of Rent. In the event Lessor terminates this Agreement pursuant to Section 9.2(a), Lessor may declare all rent and other sums payable by Lessee hereunder to be immediately due and payable; and Lessor may proceed by appropriate court action to enforce the terms of the Agreement or to recover damages for the breach thereof, including without limitation the right to recover the present value of all rent and other amounts payable by Lessee hereunder for the remainder of the Term, calculated using a discount rate of three percent (3%) per annum. Lessee expressly waives any right to notice, demand, presentment, and protest with respect to any of Lessor's rights or remedies under this Section 9. No right or remedy herein conferred upon or reserved to Lessor is exclusive of any other right or remedy herein or by law or equity provided or permitted, but each shall be cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurrently therewith or from time to time.
- Dispute Resolution.
- Arbitration. Any and all disputes, controversies, or claims arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be finally settled by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted in Atlanta, Georgia, unless otherwise agreed upon by the parties in writing. The arbitration shall be conducted by a single arbitrator selected in accordance with the AAA rules. The arbitrator shall have the power to grant any remedy or relief that he or she deems just and equitable, including, but not limited to, specific performance and injunctive relief, whether interim or final, and any such relief and any interim, interlocutory, or final award rendered therein may be confirmed or enforced in any court having jurisdiction thereof. The language of the arbitration shall be English. The arbitrator shall decide the dispute in accordance with the substantive law of the State of Georgia. The award of the arbitrator shall be in writing and shall be final and binding on the parties. Judgment upon the award may be entered in any court having jurisdiction thereof.
- Governing Rules. The arbitration proceedings shall be governed by the Commercial Arbitration Rules of the American Arbitration Association, as amended from time to time, and shall be conducted in accordance with the Expedited Procedures set forth therein, regardless of the amount in dispute. The parties agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings. The arbitrator shall have the power to order such discovery, by way of deposition, interrogatory, document production, or otherwise, as the arbitrator considers necessary to a full and fair exploration of the issues in dispute, consistent with the expedited nature of arbitration. The arbitrator is authorized to take any interim measures he or she deems necessary, including injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. Such interim measures may take the form of an interim award, and the arbitrator may require security for the costs of such measures. The parties agree that the AAA Optional Rules for Emergency Measures of Protection shall apply to the proceedings.
- Binding Nature. The parties agree that the arbitration shall be binding and that the arbitrator's decision and award shall be final and conclusive upon the parties, and judgment thereon may be entered in any court of competent jurisdiction. The parties further agree that this arbitration clause and the arbitrator's authority to grant relief shall be subject to the United States Arbitration Act, 9 U.S.C. §§ 1-16, et seq., to the exclusion of any inconsistent state laws. The parties acknowledge that they are waiving any right to a jury trial. Notwithstanding the foregoing, either party may seek interim injunctive relief from any court of competent jurisdiction to prevent irreparable harm pending the constitution of the arbitral tribunal. The prevailing party in any arbitration shall be entitled to recover its reasonable attorneys' fees and costs, including the costs of the arbitration, from the non-prevailing party. The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate, or enforce the award and for disclosure in confidence to the parties' respective attorneys, tax advisors, and senior management, and to family members of a party who is an individual.
- Notices.
- Notice Requirements. Any notice, request, demand, or other communication required or permitted hereunder shall be in writing and shall be deemed to have been duly given when delivered personally, or when sent by registered or certified mail, return receipt requested, postage prepaid, or by reputable overnight courier service, or by facsimile transmission, to the parties at the addresses specified herein (or at such other address as shall be specified by the parties by like notice).
- Addresses for Notices. Notices to the Lessor shall be sent to: Ariel Amusement Gaming, LLC c/o Michael G. Lambros, Esq. 3536 Habersham at Northlake Tucker, GA 30084 Email: mlambros@thelambrosfirm.com Notices to the Lessee shall be sent to the address provided by the Lessee upon execution of this Agreement, or to such other address as the Lessee may subsequently designate in writing to the Lessor.
- Method of Delivery. All notices shall be delivered by one of the following methods: (a) Personal delivery, with proof of delivery; (b) Registered or certified mail, return receipt requested, postage prepaid; (c) Reputable overnight courier service, with proof of delivery; (d) Facsimile transmission, with confirmation of receipt; or (e) Electronic mail, with confirmation of receipt, provided that a copy is also sent by one of the methods specified in subsections (a), (b), or (c) above. Notwithstanding the foregoing, any notice of default, termination, or legal action shall be sent exclusively by methods specified in subsections (a), (b), or (c) above. The Lessee hereby acknowledges and agrees that the Lessor may, at its sole discretion, provide notices, including but not limited to notices of default, termination, or modification of this Agreement, through electronic means, including electronic mail or electronic signature platforms such as Adobe Sign or the WPForms Signature plugin on a WordPress website. The Lessee further agrees that such electronic notices shall be deemed valid and effective as if delivered in writing by the methods specified in subsections (a), (b), or (c) above. Any notice shall be deemed to have been received: (i) If delivered personally, at the time of delivery; (ii) If sent by registered or certified mail, on the third (3rd) business day after mailing; (iii) If sent by overnight courier, on the next business day after deposit with the courier; (iv) If sent by facsimile, upon confirmation of receipt; or (v) If sent by electronic mail, upon confirmation of receipt, provided that a copy is also sent by one of the methods specified in subsections (i), (ii), or (iii) above. The Lessee shall be solely responsible for ensuring that its contact information, including mailing address, email address, and facsimile number, if applicable, are kept current and accurate throughout the term of this Agreement. The Lessee's failure to receive a notice due to outdated or incorrect contact information shall not invalidate the notice or any action taken by the Lessor in reliance thereon. In the event that the Lessee fails to provide updated contact information or fails to acknowledge receipt of any notice sent in accordance with this section, the Lessor may, at its sole discretion, deem the notice as having been received and effective upon the expiration of five (5) business days from the date of sending, regardless of the actual receipt by the Lessee. The Lessee hereby waives any right to contest the validity or effectiveness of any notice properly given in accordance with this section, and acknowledges that failure to comply with the notice provisions herein may result in the imposition of penalties, fines, or other remedies as set forth in this Agreement or as permitted by applicable law.
- Governing Law and Jurisdiction.
- Governing Law. This Agreement and all matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Georgia, without giving effect to any choice or conflict of law provision or rule (whether of the State of Georgia or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Georgia.
- Jurisdiction. The Lessor and Lessee hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the Fulton County Superior Court for any lawsuits, actions, or other proceedings arising out of or relating to this Agreement. The Lessee hereby irrevocably and unconditionally waives any objection to the laying of venue of any lawsuit, action, or other proceeding arising out of or relating to this Agreement in the Fulton County Superior Court, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such lawsuit, action, or other proceeding brought in any such court has been brought in an inconvenient forum.
- Venue. The parties agree that the venue for any dispute, claim, or controversy arising out of or relating to this Agreement shall be in Fulton County, Georgia. The Lessee hereby waives any and all rights to assert that Fulton County, Georgia is an inconvenient forum and agrees not to seek to remove or transfer any action to any court other than the Fulton County Superior Court. Notwithstanding the foregoing, the Lessor shall have the right to initiate legal proceedings in any court of competent jurisdiction to seek injunctive relief or to enforce an arbitration award. The Lessee hereby consents to the jurisdiction of such courts and waives any objection to venue or claim of inconvenient forum with respect to any action initiated by the Lessor in such courts. The parties further agree that, in the event of any dispute arising out of or relating to this Agreement, including but not limited to the interpretation, performance, or breach thereof, such dispute shall be submitted to binding arbitration in accordance with the rules of the American Arbitration Association. The arbitration shall be conducted in Atlanta, Georgia, and the decision of the arbitrator(s) shall be final and binding upon the parties, enforceable in any court of competent jurisdiction. The prevailing party in any such arbitration shall be entitled to recover its reasonable attorneys' fees and costs incurred in connection with the arbitration.
- In the event that any provision of this Governing Law and Jurisdiction section is found to be invalid or unenforceable, such provision shall be severed from this Agreement, and the remaining provisions shall continue in full force and effect. The parties agree that the court or arbitrator shall modify any invalid or unenforceable provision to the extent necessary to make it valid and enforceable while preserving its intent, or if such modification is not possible, shall sever the invalid or unenforceable provision from this Agreement without affecting the validity of the remaining provisions.
- The Lessee acknowledges and agrees that any breach of this Agreement may result in irreparable harm to the Lessor for which monetary damages would be an inadequate remedy. Accordingly, the Lessee agrees that, in addition to any other remedies available at law or in equity, the Lessor shall be entitled to seek injunctive relief to enforce the terms of this Agreement, without the necessity of proving actual damages or posting a bond or other security.
- The failure of the Lessor to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver of any right or deprive the Lessor of the right thereafter to insist upon strict adherence to that term or any other term of this Agreement. No failure or delay by the Lessor in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege hereunder.
- Amendments and Waivers.
- Written Amendments. No amendment, modification, or alteration of the terms or provisions of this Agreement shall be binding unless the same shall be in writing and duly executed by the Lessor and the Lessee, provided, however, that any such amendment, modification, or alteration shall be subject to the sole discretion and approval of the Lessor. The Lessor reserves the right to unilaterally amend this Agreement at any time and for any reason, with or without notice to the Lessee. Any such amendment shall become effective immediately upon the Lessor's issuance of written notice to the Lessee.
- Waiver of Provisions. No waiver of any term, provision, or condition of this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, provision, or condition, or of any other term, provision, or condition of this Agreement. Any waiver must be in writing and signed by the Lessor to be effective. The Lessor's failure to enforce any provision of this Agreement shall not be construed as a waiver of such provision or of the right of the Lessor to thereafter enforce such provision. The Lessee hereby expressly waives any right to claim or assert any waiver, estoppel, laches, or similar equitable doctrine against the Lessor based on any action or inaction by the Lessor.
- Entire Agreement. This Agreement, including all exhibits, schedules, and attachments hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the parties. The Lessee acknowledges and agrees that it has not relied on any representations, warranties, or statements of any kind made by the Lessor or any of its representatives, except as expressly set forth in this Agreement. The Lessee further acknowledges and agrees that it has had the opportunity to consult with legal counsel of its choice prior to executing this Agreement and has either done so or has voluntarily declined to do so. In the event of any conflict between the terms of this Agreement and any prior agreements, whether written or oral, the terms of this Agreement shall prevail. The Lessor expressly reserves the right to interpret any ambiguities or uncertainties in this Agreement in its sole discretion, and the Lessee hereby waives any right to contest such interpretations.
- Assignment.
- Assignment by Lessor. Lessor shall have the unrestricted right to assign, transfer, convey, or otherwise dispose of this Agreement or any or all of its rights and obligations hereunder, in whole or in part, to any person or entity at any time without the consent of Lessee. Such assignment may include, but is not limited to, the transfer of Lessor's rights to receive all or any portion of the payments due from Lessee under this Agreement. Lessee hereby acknowledges and agrees that in the event of any such assignment by Lessor, Lessee shall recognize the assignee as the holder of all rights so assigned and shall continue to perform its obligations hereunder in favor of such assignee without setoff, defense, or counterclaim. Upon Lessor's written request, Lessee shall execute and deliver such further assurances and documents as may be reasonably necessary to effectuate any such assignment.
- Assignment by Lessee. Lessee shall not assign, transfer, convey, sublet, or otherwise dispose of this Agreement or any or all of its rights, interests, or obligations hereunder, whether voluntarily or involuntarily, by operation of law or otherwise, without the prior written consent of Lessor, which consent may be withheld in Lessor's sole and absolute discretion. Any attempted assignment, transfer, conveyance, sublease, or other disposition by Lessee in violation of this provision shall be null and void ab initio and of no force or effect. Notwithstanding the foregoing, if Lessee is permitted by Lessor to assign this Agreement, Lessee shall remain fully liable for the performance of all obligations under this Agreement, and Lessee hereby irrevocably and unconditionally guarantees to Lessor the prompt and full discharge by any assignee of Lessee of all of Lessee's obligations under this Agreement.
- Successors and Assigns. Subject to the foregoing restrictions on assignment by Lessee, this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns. The rights and obligations of Lessor under this Agreement shall be freely assignable and transferable and all covenants and agreements hereunder shall inure to the benefit of and be enforceable by or against its successors and assigns. In the event of any permitted assignment of this Agreement by either party, the assignor shall nevertheless remain fully liable for the performance of all obligations under this Agreement, and the assignor hereby irrevocably and unconditionally guarantees to the other party the prompt and full discharge by its assignee of all obligations under this Agreement.
- Indemnification.
- Indemnification by Lessee. Lessee hereby agrees to indemnify, defend, and hold harmless Lessor, its officers, directors, employees, agents, successors, and assigns (collectively, the "Lessor Indemnitees") from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by or awarded against any Lessor Indemnitee arising out of or resulting from:
- (a) any breach or non-fulfillment of any representation, warranty, covenant, or agreement made by Lessee in this Agreement;
- (b) any negligent or more culpable act or omission of Lessee, its employees, agents, or representatives in connection with the performance of its obligations under this Agreement or use of the Equipment;
- (c) any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Lessee, its employees, agents, or representatives;
- (d) any failure by Lessee to comply with any applicable federal, state, or local laws, regulations, or codes in the performance of its obligations under this Agreement;
- (e) any failure by Lessee to properly insure the Equipment as required under this Agreement;
- (f) any claim by a third party arising out of or related to Lessee's use or operation of the Equipment; or
- (g) any violation of intellectual property rights of any third party resulting from Lessee's use of the Equipment. Lessee's indemnification obligations hereunder shall not be limited by any insurance coverage maintained by Lessee.
- Indemnification by Lessor. Lessor hereby agrees to indemnify, defend, and hold harmless Lessee, its officers, directors, employees, agents, successors, and assigns (collectively, the "Lessee Indemnitees") from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, that are incurred by or awarded against any Lessee Indemnitee arising out of or resulting from:
- (a) any breach or non-fulfillment of any representation, warranty, covenant, or agreement made by Lessor in this Agreement;
- (b) any negligent or more culpable act or omission of Lessor, its employees, agents, or representatives in connection with the performance of its obligations under this Agreement; or
- (c) any bodily injury, death of any person, or damage to real or tangible personal property caused by the negligent or more culpable acts or omissions of Lessor, its employees, agents, or representatives. Notwithstanding the foregoing, Lessor's indemnification obligations shall be limited to the extent that such losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses are directly caused by Lessor's gross negligence or willful misconduct.
- Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR INDEMNIFICATION OBLIGATIONS UNDER SECTION 15.1, IN NO EVENT SHALL LESSOR BE LIABLE TO LESSEE OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT LESSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL LESSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO LESSOR PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF LESSEE'S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. Lessee acknowledges and agrees that the limitations of liability set forth in this Section 15.3 are a fundamental part of the basis of Lessor's bargain hereunder, and Lessor would not have entered into this Agreement absent such limitations. The limitations set forth in this Section 15.3 shall apply notwithstanding any failure of essential purpose of any limited remedy set forth in this Agreement.
- Insurance.
- Insurance Coverage Requirements. Lessee shall, at its sole cost and expense, procure and maintain in full force and effect throughout the entire Term of this Agreement, a comprehensive general liability insurance policy, including property damage coverage, with a reputable insurance company licensed to do business in the state where the Equipment is located. Said policy shall name Lessor as an additional insured and loss payee, and shall provide coverage in an amount not less than Twenty-Five Thousand Dollars ($25,000.00) per Coin Operated Amusement Machine (COAM) leased hereunder. The insurance policy shall cover all risks of loss, damage, or destruction to the Equipment, including, but not limited to, fire, theft, vandalism, and any other perils customarily insured against for similar equipment. Furthermore, Lessee shall ensure that the insurance policy includes coverage for business interruption, which shall compensate Lessor for any loss of revenue resulting from the inability to operate the Equipment due to any insured event. The policy shall also include a waiver of subrogation in favor of Lessor. Lessee acknowledges and agrees that the procurement and maintenance of such insurance coverage is a material obligation under this Agreement, and failure to comply with this provision shall constitute a material breach, entitling Lessor to exercise all remedies available under this Agreement and applicable law.
- Proof of Insurance. Upon execution of this Agreement, and thereafter upon each renewal or replacement of the required insurance policy, Lessee shall furnish to Lessor a Certificate of Insurance evidencing the coverage required hereunder. While provision of such Certificate is not mandatory, Lessee is hereby notified that failure to provide said Certificate upon request by Lessor may result in a presumption of non-compliance with the insurance requirements set forth herein. Lessee shall provide Lessor with not less than thirty (30) days' prior written notice of any cancellation, non-renewal, or material change in the insurance coverage required hereunder. In the event of such cancellation, non-renewal, or material change, Lessee shall promptly procure replacement coverage complying with the requirements set forth in Section 16.1. Lessor reserves the right, at its sole discretion, to request and review full copies of the insurance policies required hereunder at any time during the Term of this Agreement. Lessee shall comply with any such request within five (5) business days of receipt thereof.
- Failure to Insure. In the event that Lessee fails to procure or maintain the insurance coverage required hereunder, or fails to add the Equipment to its existing insurance policy as stipulated, Lessee shall be solely and fully responsible for any and all damages, losses, liabilities, claims, and expenses arising from or related to the Equipment, without limitation. Notwithstanding the foregoing, in the event of Lessee's failure to maintain the required insurance coverage, Lessor shall have the right, but not the obligation, to procure such insurance coverage on Lessee's behalf. In such event, Lessee shall reimburse Lessor for all costs and expenses incurred in procuring and maintaining such coverage, plus an administrative fee of fifteen percent (15%) of such costs and expenses. Such reimbursement shall be due and payable within five (5) business days of Lessee's receipt of an invoice therefor. Furthermore, Lessee's failure to maintain the required insurance coverage shall result in the imposition of a penalty in the amount of Five Thousand Dollars ($5,000.00), which shall be immediately due and payable upon demand by Lessor. This penalty shall be in addition to, and not in lieu of, any other remedies available to Lessor under this Agreement or applicable law. Lessee hereby acknowledges and agrees that any failure to maintain the required insurance coverage constitutes a material breach of this Agreement, entitling Lessor to immediately terminate this Agreement and pursue all available legal and equitable remedies, including, but not limited to, recovery of the full value of the Equipment and any lost profits resulting from Lessee's breach.
- Miscellaneous Provisions.
- Severability. In the event that any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability shall not affect any other provision hereof, and this Agreement shall be construed as if such invalid, illegal, or unenforceable provision had never been contained herein. Furthermore, in lieu of such invalid, illegal, or unenforceable provision, there shall be added automatically as part of this Agreement a provision as similar in terms to such invalid, illegal, or unenforceable provision as may be possible and be valid, legal, and enforceable.
- Force Majeure. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of suppliers, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of nonliability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused. Notwithstanding the foregoing, the Lessee's obligation to make timely payments to the Lessor as set forth in this Agreement shall not be excused by any force majeure event.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Facsimile signatures or signatures delivered by email in portable document format (.pdf) shall be deemed original signatures for all purposes hereunder. The Lessor, in its sole discretion, may require the Lessee to execute this Agreement using electronic signature technology, including but not limited to Adobe Sign or WPForms Signature plugin on a WordPress website. The Lessee hereby acknowledges and agrees that such electronic signatures shall be legally binding and enforceable as if signed in ink. Notwithstanding anything to the contrary contained herein, the Lessor reserves the right, in its sole and absolute discretion, to amend, modify, or supplement any provision of this Agreement without the consent of the Lessee. Any such amendment, modification, or supplement shall be effective upon written notice to the Lessee. The Lessee's continued use of the Equipment following receipt of such notice shall constitute acceptance of such amendment, modification, or supplement. The Lessee hereby waives any and all defenses, rights, or claims it may have under any theory of law or equity relating to the enforceability or validity of this Agreement or any provision hereof, including but not limited to any claim of unconscionability, lack of consideration, or unequal bargaining power. The Lessee acknowledges that it has had the opportunity to review this Agreement with legal counsel of its choosing and has entered into this Agreement voluntarily and with full understanding of its terms and conditions. In the event of any conflict or inconsistency between the provisions of this Agreement and any other agreement, document, or instrument relating to the subject matter hereof, the provisions of this Agreement shall control and prevail. The Lessee acknowledges and agrees that any failure by the Lessor to enforce any provision of this Agreement shall not constitute a waiver of such provision or any other provision hereof.