Lighting Services Agreement

INTRODUCTION. This Lighting Services Agreement (the “Agreement”), dated as of the Installation Date, is entered into between the Customer (the “Customer” or “you”) and Wavelength Lighting Inc., a corporation existing under the laws of the State of New York (together with its successors and assigns, “Wavelength” or “we”, and together with Customer the “Parties”) to govern the management and service of an LED lighting system (the “Lighting System”). Subject to the terms and conditions of this Agreement, the Lighting System will be installed by Wavelength.

LIGHTING SERVICES

Throughout the Initial Term and any Renewal Term, Wavelength will provide Customer with ongoing maintenance servicing (the “Services”) of the Lighting System, which shall include the replacement of malfunctioning bulbs within the Lighting System. In the event that any bulbs are replaced pursuant to Wavelength’s obligations under this Agreement, such bulbs shall be incorporated into the Lighting System, and all references to the Lighting System herein shall include such replacement bulbs.

TERM. The term of this Agreement shall be for a period of thirty-six (36) months (the “Initial Term”), beginning on the first calendar day after which the Lighting System has been installed (the “Installation Date”). At the end of the Initial Term, this Agreement shall thereafter automatically renew on a month-to-month basis (each month following the end of the Initial Term a “Renewal Term”), unless (i) Parties agree to replace this Agreement with an amended agreement governing the use of the Lighting System or (ii) Customer exercises the Purchase Option (defined below). In the event that Customer exercises the Purchase Option, this Agreement shall terminate as of the effective date of the Purchase Option. Either Party may terminate this Agreement (i) at the expiration of the Initial Term by providing written notice to the other Party at least thirty (30) days prior to the expiry of the Initial Term or (ii) during a Renewal Term by providing written notice to the other Party at least twenty (20) days prior to the expiry of such Renewal Term. Customer understands and acknowledges that Wavelength may, no less than thirty (30) days prior to the expiry of the Initial Term, provide in writing to Customer an amended Exhibit 1 which shall govern each Renewal Term, provided that Wavelength may, during any Renewal Term, upon no fewer than fifteen (15) days written notice, provide to Customer an amended Exhibit 1 which shall govern the following Renewal Term and each successive Renewal Term thereafter, until subsequently amended.

MONTHLY FEE. Customer acknowledges that, as consideration for the installation and continuous enjoyment of the Lighting System and the Services, Customer shall pay to Wavelength a monthly fee (the “Monthly Fee”). The Monthly Fee shall be first payable on the Installation Date, and thereafter payable monthly on the same date of each month following the Installation Date for the duration of the Initial Term and each Renewal Term, unless otherwise amended pursuant to the terms of this Agreement.

SETUP, INSTALLATION COST. Wavelength will use commercially reasonable efforts to install the Lighting System at no additional cost to Customer, provided that Customer makes available to Wavelength any necessary installation equipment (including but not limited to a ladder, step-ladder, etc.) In the event that the Lighting System installation requires the services of a specialized contractor, which determination shall be made by Wavelength in its sole discretion, Wavelength will arrange for a third-party contractor to install the Lighting Services, provided that all fees attributable to such third-party contractor (the “Installation Fee”) shall be payable by Customer to Wavelength concurrently with the first Monthly Fee.  

INSURANCE. Wavelength agrees to carry commercial general liability insurance in an amount no less than $1,000,000 for protection against any claims arising from activities conducted during installation. Customer agrees to make commercially reasonable efforts to extend its existing commercial general liability insurance coverage to include the Lighting System throughout the Initial Term and any Renewal Term.

CUSTOMER REPRESENTATIONS AND WARRANTIES. Customer represents and warrants the following:

The Lighting System is in good condition and of a type, size, design, and capacity selected solely by the Customer, and the Lighting System is being leased for use in the conduct of Customer’s business. 

Customer acknowledges and accepts that the Required Equipment is provided without any warranty or conditions made on the part of Wavelength, and Customer shall make any claim relating to the Required Equipment against the manufacturer or seller of such Required Equipment. Customer shall not assert any such claim against Wavelength relating to the Required Equipment.

Customer shall bear all expenses incurred or related to any claims made or actions taken on any assigned warranty. Any cash or cash equivalent recovered under any such warranty shall be made payable to Wavelength and, in Wavelength’s sole discretion, shall be used to repair or replace the relevant portion of the Lighting System.

This document and all other documents executed in connection with Customer’s use of the Lighting System have been duly authorized by all necessary action on the part of Customer.

The execution, delivery, and performance of this Agreement do not violate any law or governmental rule, regulation, or order applicable to Customer.

Customer will at all times keep the Lighting System free and clear of all liens, claims, levies and legal processes not created by Wavelength, and shall at Customer’s own expense protect and defend Wavelength against the same.

UNILATERAL ALTERATIONS. Customer is permitted to make alterations to the configuration and orientation of the Lighting System without notifying Wavelength or requesting that Wavelength personnel make such alterations to the Lighting System (a “Unilateral Alteration”), provided that:

Customer shall be responsible for any damage to or destruction of the Lighting System (or any bulbs contained therein) resulting from a Unilateral Alteration, and

CANCELLATION FEE. Customer acknowledges that, in the event Customer terminates this Agreement prior to the end of the Initial Term, Wavelength reserves the right to assess a cancellation fee which shall be equal to the sum of all remaining Monthly Fee payments payable during the Initial Term.

EVENT OF DEFAULT. The occurrence of any of the following events (each an “Event of Default”) shall constitute a default of this Agreement:

The failure to make a required payment under this Agreement as and when due, including but not limited to any Monthly Fee, Installation Fee, Equipment Fee, Interest Fee, or any sums due as an indemnity, or other charges;

The breach or violation by either Party of any term, covenant, promise, agreement, representation, or warranty of this Agreement;

The insolvency or bankruptcy of the Customer;

Subjection of any of Customer’s property to any levy, seizure, assignment, application or sale for or by any creditor or government agency.

RIGHTS OF WAVELENGTH ON DEFAULT. On the occurrence of any Event of Default under the previous section, the party not in default shall have the option to provide notice (“Termination Notice”) of such Event of Default to the defaulting party to terminate this Agreement. The defaulting party shall have thirty (30) days following the receipt of a Termination Notice to cure such Event of Default. In the event that such Event of Default is not cured within thirty (30) days of the receipt of a Termination Notice, this Agreement shall terminate without any additional notice or written demand, and Wavelength shall have the right the take possession of the Lighting System, in addition to any other rights afforded under or by law. A termination of this Agreement shall not release either Party from the obligation to pay damages sustained under this Agreement. Customer shall pay all expenses, including attorneys’ fees, Wavelength incurs to enforce this Agreement. All of the Wavelength’s remedies are cumulative and may be exercised concurrently or separately.

RETRIEVAL OF THE LIGHTING SYSTEM. Upon the termination of this Agreement for any reason other than the election of the Purchase Option, Customer represents that it shall, within fifteen (15) days of the termination of this Agreement at a time mutually convenient to the Parties, make Customer’s premises available to Wavelength for the purpose of retaking possession of the Lighting System.

LOSS, DAMAGE, AND MALFUNCTION. If, at any time during the Initial Term or the Renewal Term, the Lighting System damaged, Customer shall (i) immediately notify Wavelength of such damage and either (ii) immediately repair the Lighting System to a state of good working order, the sufficiency of which shall be determined by Wavelength or (iii) grant Wavelength access to the Lighting System at a mutually convenient time such that Wavelength can inspect the Lighting System and determine its obligations under this Agreement. Wavelength will replace any portion of the Lighting System it determines to have malfunctioned, including any bulbs that malfunction during the Initial Term or a Renewal Term. If the Lighting System is lost, stolen, destroyed, or damaged beyond repair, Customer shall, at the Wavelength’s option: replace the Lighting System with like equipment in good working order; or pay to Wavelength the unpaid balance of all Monthly Fees for the duration of the Initial Term, or, if the Agreement has entered Renewal Terms, pay to Wavelength the next payable Monthly Fee.

OWNERSHIP OF THE SYSTEM. Customer agrees and acknowledges that, except for Customer’s rights of use under this Agreement, the Lighting System is and at all times shall remain the exclusive personal property of Wavelength, even if installed in or attached to real property by Wavelength or Customer. Customer shall have no right, title, or interest in or to the Lighting System except as expressly set forth in this Agreement. Customer understands that at all times prior to an election of the Purchase Option, this Agreement is not an agreement for the sale of goods.

PURCHASE OPTION. If, thirty-six (36) months following the Installation Date, Customer has not violated any of the terms and conditions of this Agreement, Customer shall have the option to purchase the Lighting System at a purchase price of no more than the equivalent of 12 monthly fees. If Customer elects to exercise its option to purchase under this section, the purchase price shall be payable to Wavelength within fifteen (15) days of such election, upon which payment the Purchase Option shall become effective. Customer acknowledges and accepts that, in the event Customer exercises the Purchase Option, the Lighting System shall be purchased “as-is”, without any warranties or conditions, express or implied, including warranties of merchantability. Customer represents that its use of the Lighting System shall constitute an adequate opportunity to inspect the good for faults prior to its exercise of the Purchase Option.

ELECTRICAL SYSTEM. Wavelength is not liable for any loss or damage resulting from any issue related to Customer’s electrical system (the “Electrical System”) during or at any time after the installation of the Lighting System, including but not limited to any damage or loss resulting from track systems, electrical wiring, transformers, dimmers and other switches, recessed light can fixtures, etc. Customer acknowledges and accepts that all bulb-related liability shall be covered by the individual manufacturer warranty of the bulb and that Wavelength is not in any way liable for damages related to or stemming from the bulbs themselves, including any interaction between any bulbs and the Electrical System. The provisions of this paragraph shall survive termination or expiration of this Agreement.

NOTICE. Any notice or other communication provided for herein or given hereunder to a Party hereto shall be in writing and shall be given in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return receipt requested) to the respective Party.

NO IMPLIED WAIVER. The failure of either Party to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of such Party’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation.

GOVERNING LAW. This Agreement shall be governed by the laws of the State of New York.  In the event that litigation results from or arises out of this Agreement or the performance thereof, the Parties agree to reimburse the prevailing Party’s reasonable attorneys’ fees, court costs, and all other expenses, whether or not taxable by the court as costs, in addition to any other relief to which the prevailing Party may be entitled.