These Device-as-a-Service Rental Terms and Conditions ("DaaS Agreement") govern Customer's rental of telephone hardware, mobile devices, and related equipment from Clarity Communication Advisors, Inc. (each a "DaaS Device," and collectively, the "DaaS Services"). All DaaS Devices are provided as a rental service and remain the property of Clarity. This DaaS Agreement is incorporated into and forms part of the broader Clarity Terms and Conditions ("Agreement"). In the event of any conflict between this DaaS Agreement and the Agreement, the terms of this DaaS Agreement shall control, but only with respect to the DaaS Services. This DaaS Agreement supersedes and replaces any prior agreements, terms, or understandings between the parties relating specifically to DaaS Devices or equipment rentals.
1. BILLING OF DAAS SERVICES.
This DaaS Agreement covers the rental of telephone hardware, mobile devices, and related equipment from Clarity (each a "DaaS Device" and collectively the "DaaS Services") and becomes effective upon Customer's placement of an order that includes DaaS Services. Clarity will charge a recurring monthly rental fee for each DaaS Device ("DaaS Fees"), which shall appear on Customer's regular Clarity invoice and follow the same payment method and billing cycle as other Clarity Services. The rental period for each DaaS Device begins on the date the device is recorded as delivered by Clarity's designated shipping carrier (the "DaaS Activation Date"), regardless of whether any other Service has been activated, is available for use, or is in fact used by Customer, and regardless of whether the DaaS Device has been installed or configured. DaaS Fees for the first billing period will be prorated from the DaaS Activation Date through the end of that current billing cycle. Thereafter, full monthly DaaS Fees shall be charged in advance for each applicable billing cycle until the DaaS Services are terminated in accordance with this DaaS Agreement.
2. TERM AND TERMINATION DATE FOR DAAS SERVICES.
The term of this DaaS Agreement shall be coterminous with the term of Customer's Clarity Services Agreement. The rental period for each DaaS Device shall begin on the applicable DaaS Activation Date and shall terminate on the earliest of the following: (a) the date Clarity receives the applicable DaaS Device(s) back from Customer, in good condition and in accordance with Clarity's return procedures; or (b) the date Clarity receives full payment from Customer for the applicable DaaS Device(s), converting the rental to a purchase under the terms described in this DaaS Agreement. Notwithstanding the foregoing, Customer may terminate DaaS Services for any DaaS Device within thirty (30) calendar days of its DaaS Activation Date by providing written notice to Clarity and returning the DaaS Device in good and working condition. If the device is returned timely and in acceptable condition, no DaaS Fees shall be due for that Device. This early-return option applies only once per DaaS Device and does not affect other Clarity Service fees or obligations under the Agreement.
3. RETURN OR PURCHASE OF DAAS DEVICES.
Upon any termination of the DaaS Agreement or applicable DaaS Services, Customer shall either (a) return the affected DaaS Device(s), including all accessories and materials originally provided, or (b) purchase the DaaS Device(s), in each case in accordance with Clarity's written instructions and the terms of this DaaS Agreement. A DaaS Device shall no longer be invoiced as a rented device only upon Clarity's receipt of the device and confirmation, in Clarity's sole reasonable discretion, that the return complies with this Agreement, including physical inspection and acceptance of the returned unit. Devices returned in incomplete, damaged, or non-functioning condition may be rejected or deemed purchased. If Customer fails to return the DaaS Device within thirty (30) days following termination of the applicable DaaS Services, or if the return is rejected, Customer will be deemed to have purchased that DaaS Device. The purchase price shall equal the then-current manufacturer's list price as documented by Clarity ("Manufacturer's List Price"). In such event, Clarity may charge the applicable amount using any authorized payment method on file.
4. ADDITIONAL CHARGES, TAXES, AND FEES.
The DaaS Fees charged by Clarity for DaaS Services are exclusive of all applicable taxes, fees, surcharges, and any charges for optional or ancillary services selected by Customer. Customer shall be responsible for all federal, state, local, and foreign taxes, fees, levies, and similar charges imposed in connection with the DaaS Services, including without limitation sales, use, excise, value-added, and telecommunications taxes, whether imposed directly on Clarity or Customer. Sales and use taxes may vary by jurisdiction and may be calculated based on the full retail price or Clarity's cost price, as required or permitted by applicable tax law. Clarity reserves the right to charge additional regulatory recovery fees, administrative fees, or pass-through surcharges, where permitted by law, and Customer agrees to pay all such amounts in accordance with Clarity's billing policies.
5. OWNERSHIP OF DAAS DEVICES.
Clarity retains full ownership of all DaaS Devices at all times during the term of this DaaS Agreement. No title, ownership interest, or security interest in any DaaS Device shall transfer to Customer unless and until Clarity confirms, in writing, that it has received full payment of the applicable purchase price and has expressly conveyed title. Customer shall not, and agrees not to permit any third party to: (a) use, possess, or control any DaaS Device except as expressly permitted herein; (b) sublease, assign, sell, encumber, or otherwise transfer any interest in a DaaS Device; (c) allow any lien, security interest, or other encumbrance to be placed on a DaaS Device; or (d) take any action that undermines, disputes, or impairs Clarity's ownership of any DaaS Device. Clarity may assign or transfer its ownership interest in any DaaS Device without prior notice to Customer. In the event of such an assignment, the assignee shall have all of Clarity's rights with respect to the DaaS Device, but none of Clarity's obligations under this DaaS Agreement. Customer waives any right to assert claims, offsets, or defenses against any such assignee. Upon request, Customer shall promptly execute and deliver any documents reasonably required by Clarity to protect or perfect its ownership interest in the DaaS Devices, including but not limited to Uniform Commercial Code financing statements.
6. LOSS OR DAMAGE TO DAAS DEVICES.
Customer shall inspect each DaaS Device upon delivery. If Customer fails to notify Clarity in writing within five (5) business days of delivery regarding any defect, damage, or non-conformity, the DaaS Device will be deemed delivered in good working condition and accepted as-is. Customer bears all risk of loss, theft, or damage (excluding normal wear and tear or damage covered under the manufacturer's warranty) for each DaaS Device from the time of delivery through the date of return and Clarity's written acceptance of the device. If any DaaS Device is lost, stolen, damaged, destroyed, or otherwise becomes unavailable to Clarity for any reason, Customer shall promptly (a) notify Clarity in writing and (b) pay to Clarity, within ten (10) business days, an amount equal to the Manufacturer's List Price for the affected DaaS Device. This obligation does not apply to repairable damage covered under the manufacturer's warranty and resolved through that warranty process. Any amounts due under this Section may be charged using any payment method on file.
7. CUSTOMER USAGE OF DAAS DEVICES.
Customer agrees to use each DaaS Device solely in a reasonable, normal, careful, and proper manner, and only in connection with Clarity Services. Customer shall not use any DaaS Device to obtain voice or messaging service from a provider other than Clarity, unless and until Customer purchases the device in accordance with Section 5 and receives written confirmation of title transfer from Clarity. This restriction does not prohibit ordinary use of a DaaS Device on Wi-Fi or other data networks, or with third-party applications, where such use does not involve obtaining voice or messaging service from another provider. Each DaaS Device must remain unaltered, in its original condition, and may not be defaced or modified. The device shall not be used or operated in any way that violates applicable federal, state, or local laws or regulations. All DaaS Devices must remain within the United States and may not be exported, re-exported, or transported to any foreign jurisdiction in violation of U.S. export control laws or other restrictions. Customer shall not remove, obscure, or tamper with any regulatory labels, certification markings, or identification affixed to the device. Repairs may only be performed with Clarity's prior written authorization and strictly in accordance with Clarity's instructions and approved service methods. Any breach of these use restrictions shall constitute a material violation of this DaaS Agreement and may subject Customer to fees, penalties, or early purchase obligations at Clarity's discretion.
8. RETURNS.
Customer agrees to return each DaaS Device to Clarity in fully functional, undamaged condition, at Customer's sole risk and expense. All returns must be packaged securely and shipped in accordance with Clarity's written return instructions. A restocking fee of twenty percent (20%) of the Manufacturer's List Price shall apply to any DaaS Device returned before the expiration of the then-current Term, including any device returned under the thirty (30) day early-return option in Section 2. No restocking fee applies to a DaaS Device returned at or after expiration of the Term in accordance with Clarity's return instructions. In addition, Customer shall be responsible for all shipping, handling, and logistics costs associated with the return of any DaaS Device and related hardware. Each returned DaaS Device must include all original components, peripheral devices, manuals, power adapters, cords, and accessories. If any item is missing or if the device is damaged or not fully operational in Clarity's sole and reasonable discretion, Customer may be charged up to the Manufacturer's List Price of the affected DaaS Device. Prior to returning any device or hardware that contains data, Customer is solely responsible for transferring, backing up, or otherwise safeguarding any files, data, or other content it wishes to retain. Customer acknowledges that once a device is returned, any stored information will be irretrievable and may be permanently deleted. Customer hereby waives and releases Clarity from any and all liability for the loss, destruction, or disclosure of any such data following return.
9. OPTIONAL CUSTOMER PURCHASES.
Beginning ninety (90) days after the DaaS Activation Date, Customer may elect to purchase any rented DaaS Device. Any such purchase shall be at the Manufacturer's List Price for the applicable DaaS Device, as determined by Clarity in its sole discretion and as documented at the time of purchase. Title to the DaaS Device shall not transfer unless and until Clarity receives full payment of the Manufacturer's List Price and confirms the transfer of ownership to Customer in writing. All DaaS rental billing will continue until the purchase is completed and confirmed.
10. CLARITY RIGHTS AND REMEDIES.
In the event Customer fails to return a DaaS Device or defaults on its obligation to pay the full purchase price for any DaaS Device as required under this DaaS Agreement, Clarity shall have, in addition to all other rights and remedies available at law, in equity, or under this Agreement, the right to take immediate possession of any and all unreturned DaaS Devices without prior demand, notice, or legal process, regardless of the location of the device. Customer expressly waives any claims for damages arising from Clarity's recovery of its property. Clarity further reserves the right to continue invoicing Customer for all applicable DaaS Fees, taxes, charges, and other related costs for each DaaS Device until Customer has fully complied with its return or purchase obligations under this DaaS Agreement. These remedies shall survive the expiration or termination of the Agreement and remain in full force until satisfaction of all outstanding obligations by Customer.
Warranty Disclaimer
EACH DAAS DEVICE AND ANY TELEPHONE OR OTHER HARDWARE RENTED OR PURCHASED IN CONNECTION WITH THIS DAAS AGREEMENT IS PROVIDED STRICTLY "AS IS" AND "AS AVAILABLE," WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES. CLARITY DISCLAIMS ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING UNDER STATUTE OR COURSE OF DEALING, USAGE, OR TRADE PRACTICE. CLARITY MAKES NO REPRESENTATION OR GUARANTEE REGARDING DELIVERY DATES, OR THAT ANY DAAS DEVICE IS FREE FROM CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS, INCLUDING PATENT AND TRADE SECRET RIGHTS. ALL RISKS ASSOCIATED WITH THE USE OF ANY DAAS DEVICE ARE ASSUMED ENTIRELY BY THE CUSTOMER. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES. TO THE EXTENT SUCH DISCLAIMERS ARE PROHIBITED BY APPLICABLE LAW, THE SCOPE AND DURATION OF ANY APPLICABLE IMPLIED WARRANTY SHALL BE LIMITED TO THE MINIMUM REQUIRED UNDER SUCH LAW.
11. UPDATES, CHANGES AND VERSIONS OF THIS DAAS AGREEMENT.
Clarity reserves the right to update or modify the terms and conditions of this DaaS Agreement at any time in its sole discretion. The version of the DaaS Agreement that governs each DaaS Device shall be the version in effect on the DaaS Activation Date applicable to that specific device, including the start date for any replacement or upgraded DaaS Device. All updates and modifications shall apply prospectively unless otherwise expressly stated in writing by Clarity.