READ THIS AGREEMENT CAREFULLY
PLEASE NOTE THAT IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOUR RENTAL EQUIPMENT IS PROPERLY PREPARED FOR RETURN SHIPMENT ACCORDING TO THE TERMS LISTED BELOW. FAILURE TO DO SO WILL RESULT IN FEES BEING CHARGED TO YOUR ORDER. THESE FEES WILL AUTOMATICALLY BE CHARGED TO YOUR CREDIT CARD.
BE SURE TO RETURN YOUR EQUIPMENT ON TIME. LATE FEES WILL BE CHARGED FOR LATE RETURNS. BE SURE TO SCHEDULE PICKUPS WITH UPS BY VISITING HTTPS://WWW.UPS.COM OR BY CALLING 1-888-742-5877.
IF YOU THINK YOUR RENTAL MIGHT BE LATE, PLEASE INFORM FELLO IMMEDIATELY.
DO NOT LEAVE ANY ID’S, PINS OR PASSWORDS ON THE IPADS, PARTICULARLY APPLE ID AND ICLOUD ACCOUNTS. FAILURE TO COMPLY WILL RESULT IN YOUR RENTAL BEING CONSIDERED AS NOT RETURNED, AND LATE FEES WILL BE APPLIED UNTIL WE CAN SUCCESSFULLY WIPE THE EQUIPMENT OF ALL NON-FACTORY INSTALLED DATA.
SEND BACK CLEAN AND STICKER-FREE EQUIPMENT. A CLEANING FEE OF $5.00-$20.00 WILL BE APPLIED TO EACH ITEM THAT REQUIRES CLEANING, DEPENDING ON THE ITEM AND LEVEL OF CLEANING REQUIRED, TO BE DETERMINED BY FELLO.
RENTAL TERMS AND CONDITIONS
WHEREAS Renter desires to rent Equipment from Flying Connected, Inc. d/b/a “FELLO” (hereinafter “FELLO”); and
WHEREAS FELLO is willing to rent Equipment to Renter.
NOW THEREFORE, in consideration of the mutual promises and covenants hereinafter set forth, the parties, intending to be legally bound, agree as follows:
As used in this MRA, the following capitalized terms shall have the following meanings, unless the context otherwise requires. Certain other terms are defined elsewhere in this MRA.
1.1 “Affiliate” means, with respect to an entity, any other entity which, directly or indirectly controls, is controlled by, or is under common control with, such entity.
1.2 "Documentation" means user guides, manuals, and product literature provided by FELLO to Renter concerning installation, operation and use of Equipment.
1.3 “Equipment” means (for example, and not by way of limitation) computers, tablets, phones and printers and associated supplies (including inks, packaging, containers and carrier bags), software and wireless connectivity services as set forth in the applicable invoice(s).
1.4 “Fees” shall mean those charges associated with the rental of Equipment by Renter including, but not limited to, the initial rental fee, Equipment replacement costs, and ancillary costs such as, for example only, courier and delivery service fees, bank and administrative fees, all as set forth in the invoice(s) and Schedule of Fees attached to this Master Services Agreement. Certain fees including but not limited to replacement costs are set forth in the attached 'Schedule of Fees,' and incorporated into this Agreement.
1.5 “Rental Period” shall mean the time period during which FELLO has agreed to provide the Equipment to Renter as set forth in the invoice(s).
1.6 "FELLO" shall refer to Flying Connected, Inc. d/b/a FELLO, a New Jersey Limited Liability Company.
1.7 “MRA" shall mean this Master Rental Agreement and its Terms and Conditions.
1.8 “Invoices” are statements and/or sales receipts, etc. generated by FELLO at various times, including but not limited to inception of the Rental, showing all fees and costs pursuant to the MRA.
1.9 “Educational Providers” includes, without limitation: school districts; university systems; pre-schools; day care centers; childcare facilities; primary and elementary schools; secondary schools; middle schools; high schools; universities, colleges and higher educational institutions; etc.
1.10 “Healthcare Providers” includes, without limitation: hospital systems and hospitals; long term care facilities; clinics and emergency care centers; medical and dental offices; nursing homes; mental healthcare facilities; hospice centers; etc.
2. Rental Period
2.1 The parties agree that the Equipment will be delivered to Renter by FELLO at the beginning of the Rental Period and that the Equipment will be returned to FELLO by Renter at the end of the Rental Period. (Equipment must be submitted to the carrier before 6:00 P.M. local time). Late fees shall accrue after the Rental Period has expired. If Rental Equipment is not returned by the fifth (5th) day after the expiration of the Rental Period, Rental Equipment will be deemed lost and the replacement charges set forth herein shall apply.
3. Delivery/Return by Delivery Service
3.1 Unless otherwise agreed to by the parties (e.g., local New York City delivery) all Equipment will be shipped by FELLO to Renter and returned to FELLO by Renter via a recognized commercial delivery service ("Delivery Service") such as UPS or FedEx. For orders exceeding 500 units of Equipment, FELLO may utilize an alternative Delivery Service, such as freight transport by truck.
3.2 All Equipment shipped to Renter via a Delivery Service will require a signature for release to Renter. If Delivery Service cannot obtain an authorized signature, and arrangements are made for a subsequent delivery, or for a pickup by Renter, the original Rental Period and fees shall nevertheless apply, and there shall be no credit to Renter for the delayed delivery.
3.3 Renter will pay for all shipping and packaging costs associated with round-trip shipment. These costs will be charged as part of the initial rental fee and will neither be refunded nor credited even if an alternative method of return is utilized.
3.4 FELLO will include a return label and packaging with the delivered Equipment. Renter MUST return the Equipment to FELLO using the FELLO provided return label and packaging. If Renter is unable to locate the return label it is required to request, in writing, a duplicate label from FELLO. Failure to do so will subject Renter to daily late charges, as set forth in the Schedule of Fees (unless Renter has received prior written authorization from FELLO to return the Equipment in an alternate manner). Renter is responsible for providing the Equipment to the Delivery Service for return to FELLO on the final day of the Rental Period and prior to the time of the final daily pickup at the Delivery Service location selected by Renter, so that the Equipment can be placed into transit by the Delivery Service on the final day of the Rental Period. Renter must obtain a receipt showing the date and time of submission from the Delivery Service. Any delay in providing the Equipment to the Delivery Service for return to FELLO as set forth above will subject Renter to daily late charges, as set forth in the Schedule of Fees.
FELLO shall not be responsible for and shall not be obligated to refund or credit any fees, in the event a shipment is delayed or does not arrive by the agreed upon arrival date due to Delivery Service negligence, weather, or acts of god. FELLO’s only obligation is to ship on the date and by the method agreed upon by the parties. The parties agree that for orders requiring international shipment, FELLO shall not be responsible for shipping delays caused by customs or carrier clearance or any taxes/duties or similar fees associated with international shipments. For customers requiring Saturday Delivery in remote areas where the carrier does not guarantee Saturday Delivery, FELLO’s only obligation is to ship on the date and by the method agreed upon by the parties.
Notwithstanding the foregoing, FELLO reserves the right to arrange an alternate shipping method in an effort to fulfill the order in the event of extraordinary and/or unforeseeable circumstances, including, but not limited to inclement weather, unavailability of certain shipping methods, or acts of God. Additional charges applicable to such alternate shipment arrangements shall be charged to the Renter without the requirement of additional notice to the client.
In the event of a delayed delivery of Equipment or an incomplete shipment caused directly by FELLO, Renter shall be entitled to a refund of the pro rata rental fee associated with the missing (incomplete) Equipment or late delivered Equipment (delayed delivery), but only for the period while the delivery is incomplete or delayed. This Section 3.4 shall apply also to Section 4.
3.5 The delivery address provided by Renter shall be set forth in Renter's Invoice(s). The Renter is advised to double-check this address to ensure its accuracy. The address provided by Renter must be a commercial (non-residential) address leased or owned by Renter at which location Renter conducts its business, or a commercial address at which Renter is licensed or authorized to host/arrange an event. This Section 3.5 shall apply also to Section 4 (with respect to Deliveries and Returns by Couriers).
4. Delivery/Return by Courier
4.1 In the event the parties agree that a courier service is preferred (for example, with a local New York City delivery and/or pickup) Renter shall provide, in full detail, the delivery and pickup addresses, time of pickup or delivery, the name of on-site contact person(s) and direct telephone number(s) for contacting such person(s). The contact person shall provide FELLO’s courier with Government-issued identification (such as a driver's license or passport) matching the contact name provided and a company business card if requested and shall sign a document provided by FELLO acknowledging receipt of the Equipment.
4.2 If Renter’s contact person is unavailable to FELLO’s courier, and FELLO’s courier is unable to deliver or pick up the Equipment, or is detained more than thirty (30) minutes (due to the fault of Renter) FELLO shall cancel the delivery or pick up, which shall be rescheduled and shall charge an additional courier fee equal to that charged by the courier. In the event the delivery must be rescheduled, the original Rental Period and fees shall nevertheless apply and there shall be no credit to Renter for the delayed delivery. If the pickup must be rescheduled, the late fees set forth in the Schedule of Fees shall apply.
4.3 If courier pickup is arranged, and the end of the Rental Period falls on a weekend or public holiday then the Equipment pickup must be scheduled by Renter before 4:00 p.m. on the first following business day.
5. Failure to Timely Return
5.1 If the Rental Equipment is not submitted to the carrier by 6:00 P.M. local time on the final day of the Rental Period, then Late charges will be applied. FELLO reserves the right, in its sole discretion, to extend the Rental Period until the Equipment is returned. FELLO further reserves the right, in its sole discretion, to arrange for the recovery of Equipment at Renter’s sole cost and expense.
5.2 If the Rental Equipment is not returned within five (5) days after the Rental Period has ended, then all Rental Equipment not received by FELLO shall be deemed lost and Renter shall be charged for the full replacement cost (set forth in the Schedule of Fees) of the non-received Equipment.
5.3 Renter acknowledges that any pro rata daily charges, late charges and replacement charges described herein are strictly non-refundable once charged. Renter expressly authorizes FELLO to charge its card on file to process the charges set forth herein. Renter agrees that it shall not be entitled to any offset, refund or reduction of such charges if equipment is returned late or after being deemed lost. All dates in this Section 5 are time-of-the-essence. In the event of a dispute, the Renter further agrees that it shall not initiate a chargeback from its credit card company. In addition to the foregoing, in the event the Renter makes a late return of equipment, FELLO reserves the right to charge Renter for expedited return fees to ensure the prompt return of any overdue equipment items.
6. Payment Terms
6.1 Notwithstanding fees which the Renter authorizes Fello to charge to its card on file, payment is to be made, for all charges subsequent to the initial rental fee (such subsequent charges to include, for example only, late charges, Equipment repair and/or replacement costs, and ancillary costs such as, courier and delivery service fees, bank fees and administrative fees, etc.), within thirty (30) days of an e-mailed invoice’s transmission. If invoices are sent by mail or a delivery service, they are payable thirty (30) days from the date of postage or receipt by the carrier. In the event Renter fails to timely pay any invoice, then FELLO reserves the right to: (a) cancel this MRA without notice and recover the Equipment at the sole cost of Renter; (b) charge Renter interest at a rate of 1.5% for each month or part thereof the invoice remains unpaid, calculated from the date of invoice, until paid in full; (c) charge Renter for any costs incurred in the recovery of any debts including all legal costs, including attorney’s fees; and (d) charge Renter retail replacement costs of a current model new item of the same brand or similar quality brand of any Equipment not returned to FELLO. Renter understands and agrees that the foregoing rights and remedies of FELLO are cumulative. This Section 6.2 shall survive termination of this MRA.
6.2 Renter understands and agrees that it will provide a company credit card number (together with expiration date, billing zip and CVV code) for security purposes and to cover Fees as well as charges for late return of Equipment, loss, theft or damage to Equipment, the return of Equipment in a locked state, etc., including all the charges identified in the MRA, Schedule of Fees and invoice(s). FELLO agrees that it will not use the provided company credit card except in circumstances where Renter fails to timely pay any invoice when due or where Renter has otherwise authorized FELLO to charge the credit card. Renter agrees that FELLO shall be authorized to charge Renter's card on file for applicable late fees, replacement charges, unpaid invoices on or after their due date and that in the event Renter disputes any charges or invoices, regardless of causes, Renter shall not initiate a chargeback from its credit card company.
6.3 Renter understands and agrees that if it chooses to pay any charges, including but not limited to the deposit and/or the initial rental fee and/or subsequent charges by credit card, or in the event FELLO utilizes the aforesaid company credit card to satisfy past due invoices or where Renter has otherwise authorized use of the credit card, FELLO shall additionally charge all bank fees associated with the use of the credit card plus administrative costs of three percent (3%) of the charged amount. Such bank fees and administrative costs are not refundable.
6.4 Renter further understands that any discounts, special pricing and/or special offers ("discount(s)") on documents provided by FELLO will be revoked in the event payments are not submitted by their due date; and thereafter the full balance shall immediately become due without the discount(s).
6.5 Renter understands that order quantities referenced in the invoice(s) are final. In the event the Renter requests a change in order quantity, FELLO may, in its sole and absolute discretion, adjust or remove any applicable discounts or complimentary products or services.
6.6 The Renter's acknowledges that Renter's Order will not be accepted or processed by FELLO until the MRA is executed by the Renter and Renter pays the total amount due. It is the Renter's responsibility to ensure that Renter's Order has been submitted properly and received by FELLO.
7. Cancellation of orders-Termination of MRA
7.1 All Cancellation Requests are subject to a 20% Cancellation Fee, in addition to any other fees that may apply.
7.2 Cancellation Requests that received by Fello more than thirty (30) business days prior to the Rental Period will be eligible for a refund (less the Cancellation Fee). If a cancellation request is received less than thirty (30) business days before the start of the Rental Period, the Renter will not be entitled to a refund. The Renter will also not be entitled to any refund in the event of an early termination during the Rental Period.
7.3 Notwithstanding the foregoing Section 7.2, if Renter cancels an order less than thirty (30) business days before the start of the Rental Period but more than ten (10) business days before the start of the Rental Period, and the order was a “standard” order (i.e., required no customization or pre-installation) then, and in that event only, Renter shall have the right, but not the obligation, to reschedule its Rental Period (at the fee schedule in effect at the time of rescheduling) upon payment to FELLO of twenty-five percent (25%) of the original rental fee and availability of the requested hardware.
7.4 Renter understands and acknowledges that the Equipment has substantial monetary value and in the event of large orders, FELLO, may within its sole discretion, conduct additional review of the subject transaction prior to accepting such orders for fulfillment. FELLO shall have the right, within its discretion, to decline to accept orders. In the event of such cancellation, FELLO will refund any fees paid by the Renter.
8.1 Renter has twenty-four (24) hours after Equipment is received by Renter to inspect the provided Equipment to ensure that the Equipment provided is in good condition and functions properly. Equipment not rejected as defective within said twenty-four (24) hour period shall be deemed accepted.
8.2 Renter is prohibited from altering or adding any cellular data plans or features to any Equipment without the prior written consent of FELLO.
8.3 Renter is prohibited from placing or installing any pass codes, locks, and/or any other restrictive mechanisms on Equipment. In the event such a locking or other restrictive mechanism is on Equipment when it is returned to FELLO, Renter shall be subject to a fee of two hundred and fifty ($250) for each piece of Equipment so locked or otherwise restricted.
8.4 When purchasing data for Equipment, Renter shall be entitled to advance purchase at a standard rate and shall incur an overage rate set by FELLO for any data used over this advance purchase amount.
8.5 Regarding chargers for electronic Equipment, one (1) charger will be provided for every piece of Equipment (where chargers are appropriate) unless otherwise agreed to by Renter and FELLO.
8.6 The parties understand and agree that due to frequent upgrades to electronics and software, FELLO has the right to deliver Equipment which is an upgrade from that Equipment identified in the invoice(s), with the understanding that the upgraded Equipment shall have equal or better performance than that Equipment identified in the invoice(s), and shall be at no additional rental cost to Renter. In the event of such upgrade, Renter shall be notified in writing (typically by an e-mail) regarding details of the upgrade as soon as possible before the Equipment is provided to Renter. Renter acknowledges that such writing shall become a part of this MRA and shall constitute an amendment to the MRA and shall serve to modify the Equipment identified herein and the replacement cost thereof. All late fees and replacement costs associated with the upgraded equipment shall apply accordingly.
8.7 The parties understand and agree that Equipment is available in various colors and aesthetic schemes, although each has equivalent functionality, and FELLO has the right to deliver Equipment in the color or colors and aesthetic schemes selected by FELLO unless the parties have agreed to a specific color or colors as set forth in the invoice(s). If the parties have so agreed, and FELLO provides Equipment not matching the colors set forth in the invoice(s), then Renter shall be entitled to a refund equal to twenty percent (20%) of the rental cost of the non-conforming Equipment upon completion of the Rental Period and acceptance of the returned Equipment by FELLO.
8.8 All Equipment and software provided through this MRA may only be used by the Renter pursuant to the purposes set forth herein or otherwise agreed in writing by the Parties.
Any software included on the Equipment, whether it is proprietary or subject to licensing from third parties, may not be copied. The unauthorized use, downloading, installation, copying, or distribution of third- party copyrighted, trademarked, or patented material from the Internet is expressly prohibited.
The Renter further agrees that the Equipment and software contained thereon shall not be used to obtain, distribute or disseminate content that could be considered discriminatory, offensive, obscene, threatening, harassing, intimidating, or disruptive to any other person. Examples of unacceptable content are pornography, derogatory comments involving race, age, sex, national origin, disability, sexual orientation, religious or political beliefs, or any other comment that may be offensive to fellow Employees or the public.
The Renter shall protect Rental Equipment from prohibited uses and shall be responsible for ensuring that third parties do nothing to cause a violation of this clause by third-party users/End Users. The Rental shall also report any prohibited uses it becomes aware of. In the event FELLO becomes aware of any of the prohibited uses set forth in this section, FELLO shall have the right to terminate the MRA without refund of any charges.
9. Theft & Damage Insurance Service
9.1 FELLO offers insurance against theft of, and/or damage to Equipment. Purchasing the Insurance is voluntary and not a requirement of renting equipment from Fello. Should Renter choose to purchase such insurance coverage (Theft & Damage Insurance Service Agreement) in the event it is offered, FELLO will attach to this MRA a document setting out the terms, conditions and limits (including deductibles) of such insurance, which document shall be initialed by Renter. Such document will provide, in essence, that FELLO will cover the Equipment during the Rental Period (or at an additional pro rata rate in the event the Rental Period is extended), against damage and/or theft in accordance with the coverage selected by Renter. Renter understands and acknowledges that (1) loss is not covered; and (2) negligence resulting in loss of Equipment, or malicious damage to Equipment is not covered by the Theft & Damage Insurance.
9.2 The fee to Renter for FELLO-provided Theft & Damage Insurance shall be set forth in the invoice(s) generated by FELLO and shall be added to Renter’s initial rental fee.
9.3 Under no circumstances will FELLO accept a claim for theft of Equipment without a copy of a filed police report which clearly sets forth a theft. In the event of a “mysterious disappearance” which is not clearly a theft, the loss is not covered by the Theft & Damage Insurance. In the event of a dispute, FELLO’s decision regarding the loss and whether it is covered by insurance is final.
10. Care of Equipment
10.1 Renter is obligated to protect the Equipment and avoid any damage. Any damage to the Equipment will be repaired by FELLO or its designated repair service and will be at the sole cost and expense of Renter (as set forth herein), except as otherwise provided by FELLO's Theft & Damage Insurance if the coverage has been purchased by the Renter.
10.2 Renter is liable for hardware repair or replacement costs until it has been returned to FELLO and a full inspection of the Equipment by Fello’s Inventory Team confirms the Equipment is free of damage and/or any malfunction. FELLO has up until ten (10) business days from the date of receipt of all equipment and all accessories referenced in the invoice(s) to FELLO’s facilities to inspect the equipment and assess for damages, shortages and/or malfunctions. FELLO shall have the right to extend the period to inspect so long as FELLO is not in receipt of all outstanding equipment and accessories
10.3 In the event hardware is returned and found by Fello to be damaged, FELLO will charge Renter’s card on file for the costs of repair and cost of lost usage of the equipment, which shall not exceed the total replacement cost of the hardware. In the event the costs described in this section are equal or greater to 75% of the total replacement cost set forth in the Schedule of Fees, FELLO reserves the right, in its sole discretion, to charge the entire replacement cost to the Renter.
10.4 If any of the Equipment is lost or stolen during the Rental Period (or extensions of said Rental Period) and FELLO's Theft & Damage Insurance has not been purchased by Renter or where FELLO's Theft & Damage Insurance has been purchased but the circumstances surrounding the loss or theft are subsequently determined by FELLO to be excluded, FELLO reserves the right to charge Renter the replacement costs set by FELLO for the relevant Equipment. In the event of loss or damage of the Equipment, the rental charges shall continue until said costs for the Equipment are paid for in full by Renter, which amount shall be in addition to the rental charges paid.
10.3 FELLO transports all rental equipment in custom packaging. The packaging provided, including any foam materials and/or inserts, shall not be disposed of or damaged. Renter understands that all rental equipment must be returned to FELLO using the original packaging as provided to Renter by FELLO. In the event Renter fails to meet these requirements, FELLO reserves the right to charge Renter for the full replacement costs of the packaging/materials, as referenced in this MRA and Schedule of Fees.
11.1 Indemnification by Renter: To the fullest extent permitted by law, Renter shall, at Renter’s sole cost and expense, hold harmless and indemnify FELLO, its affiliates, all holders of a legal or beneficial interest in FELLO and all of its officers, directors, executives, managers, members, partners, owners, employees, agents, successors and assigns (collectively “FELLO Indemnitees”) from and against all losses, damages, fines, costs, expenses or liability (including reasonable attorneys’ fees and all other costs of litigation) incurred in connection with any action, suit, demand, claim, investigation or proceeding, or any settlement thereof, which arises from or is based upon:
any personal injury, bodily injury or property damage whatsoever occurring in connection with the Rental or Renter’s use of the Equipment;
Any claim for breach of intellectual property rights directly or indirectly from use of Equipment by Renter;
Any loss or liability incurred by FELLO resulting from possession, use or operation of the Equipment by Renter;
Any liability which FELLO may incur by reason of the use of the Equipment for any purpose other than as stated by Renter to FELLO;
Any act by Renter resulting in a claim affecting FELLO's interest in or title to the Equipment and any action taken by FELLO to protect such interest and title; or
Any damages claimed or threatened by a third-party due to Renter’s acts or omissions, including any negligent or intentional acts.
Renter’s violation, breach or asserted violation or breach of any federal, state or local law, regulation or rule; or
Renter’s infringement, violation or alleged infringement or violation of any Mark, patent or copyright or any misuse of the Trade Secrets or other Confidential Information of any Third Party. The obligations of this Section shall expressly survive the termination of this Agreement.
11.2 Notification of Action or Claim. Renter shall give FELLO immediate notice of any such action, suit, proceeding, claim, demand, inquiry or investigation that may give rise to a claim for indemnification by a Fello Indemnitee. FELLO has the right (but not the obligation) to retain counsel of its own choosing in connection the defense and/or settlement of any such action, suit, proceeding, claim, demand, inquiry or investigation. Should FELLO elect to retain counsel, Renter shall acknowledge and agree that such an undertaking by FELLO shall in no way diminish the obligation of the Renter to indemnify the FELLO Indemnitees and to hold them harmless, and for Renter to be represented by counsel of Renter’s own choosing with respect to any such action, suit, proceeding, claim, demand, inquiry or investigation in which Renter is named.
11.3 Fello’s Right to Settle and/or Take Corrective Action. In order to protect persons, property, FELLO’s reputation or the goodwill of others, FELLO has the right to, at any time without notice, consent or agree to settlements or take such remedial or corrective actions as it deems expedient with respect to any action, suit, demand, claim, investigation or proceeding if, in its sole judgment, there are grounds to believe:
any of the acts or circumstances listed in Section 11.1 above have occurred; or
any act, error, or omission as described in Section 11.1(f) may result directly or indirectly in damage, injury, or harm to Fello, any person or any property.
11.4 Recovery from Third Parties. If FELLO exercises its rights under this Section 11 to settle or take corrective or remedial action, causes any of Renter’s insurers to refuse to pay a third party claim, all cause of action and legal remedies the Renter might have against such insurer shall automatically be assigned to FELLO without the need for any further action on either party’s part. Under no circumstances shall FELLO be required or obligated to seek coverage from third parties or otherwise mitigate losses in order to maintain a claim against Renter. The failure to pursue such remedy or mitigate such loss shall in no way reduce the amounts recoverable by FELLO from Renter.
11.5 Survival of Terms. Renter expressly agrees that the terms of this Section 11 shall survive the termination, expiration or transfer of the MRA.
12. Equipment Malfunction/Repair
12.1 In the event of an Equipment malfunction (for reasons other than misuse, accident or malicious damage) then FELLO will repair or replace the malfunctioning Equipment, at FELLO’s facility, at no charge to Renter (other than shipping, for which Renter shall be responsible) and FELLO will refund the pro rata rental charge for malfunctioning Equipment while it is being repaired or replaced.
12.2 If Renter chooses not to return the Equipment to FELLO for repair and chooses to itself repair the Equipment, then all repair costs are at the sole expense of Renter and Renter will not be entitled to the refund noted in Section 12.1, above.
12.3 In the case of malfunctions caused by accident, malicious damage or misuse the Equipment will be repaired by FELLO or its appointee and the cost thereof will be charged to Renter. FELLO reserves the right to replace the Equipment with equivalent Equipment.
13 On-Site Technical Support
13.1 At its option, the Renter may purchase On-Site Technical Support services from FELLO. On-Site Technical Support fees are included in Renter’s invoice(s).
13.2 The technical support personnel provided by FELLO will use best efforts for the limited purpose of assisting Renter with the set-up, usage and basic troubleshooting of the rented equipment. The Renter further understands and agrees that FELLO cannot warrant that the efforts of the support personnel will result in the successful deployment, use and/or functionality of the Equipment. While FELLO’s on-site technical support staff will assist Renter with the unpacking and repacking of Rental Equipment, the Renter shall remain primarily responsible for demonstrating reasonable care while un-packing, setting-up and repacking the equipment for its return. The Renter agrees to ensure that all Rental Equipment is used carefully and returned free of damage.
13.2 In the event that Renter claims, and FELLO agrees, that the support personnel assigned did not provide appropriate support, Renter’s sole remedy shall be acceptance of a refund of fees related to the support.
13.3 Renter understands and agrees that in the event it avails itself of such on-site support, Renter shall nevertheless remain solely responsible for protecting the Equipment identified in the invoice(s).
13.4 On-site Tech Support is available for the Renter’s Event at a standard rate of $1,500.00 per day (“daily fee”) based on a 2-day minimum per event/order, per support technician. On-site support is provided between the hours of 9:00 a.m. to 5 p.m. local time (“Normal Business Hours”), and overtime rates will be billed at $200.00 per hour, per support technician.
13.5 The Renter may request support outside of the Designated Support Hours. If FELLO can accommodate the request and agrees to provide the additional support time, these hours will be charged at a rate of $200.00 per hour per staffer. With respect to support hours worked beyond 8 hours support time per day (per staffer) will be charged at a rate $200.00 per hour per staffer.
13.6 FELLO cannot guarantee that on-site personnel will be available beyond the Designated Support Hours. FELLO may decline, in its sole and absolute discretion, to provide personnel beyond the reserved time.
13.7 If additional on-site support time is requested by the Renter and FELLO agrees to provide the additional support time, the Renter authorizes FELLO to charge Renter's card on file without further notice to Renter. The Renter agrees that should it desire additional support time, such requests must be promptly communicated as soon as such a need becomes known in order for FELLO to be able to make an accommodation. The Renter also agrees to execute any written confirmation forms with respect to the requested additional support when presented by FELLO’s on-site support personnel. The Renter agrees to identify at least one individual (e.g., an officer, representative, employee or agent of the Renter) who will be present on-site (or immediately accessible by cellphone, text or email) during the Event that will have direct authority to bind the Renter with respect to requests for additional support time, payment obligations, or otherwise as may pertain to the Renter (the “Designated Individual”). The Renter agrees to provide the Designated Individual’s cellphone number and email to Fello prior to the event. Notwithstanding the foregoing, the Renter shall be bound to the terms and conditions set forth in the MRA and with respect to the additional support time, if any representative of the Renter (or individual affiliated, employed, contracted by or otherwise associated with the Renter) signs, consents or otherwise authorizes the additional support time on Renter’s behalf, regardless of whether that individual is a “Designated Individual.”
13.8 Renter acknowledges that on-site support requires booking in advance by FELLO. This includes the arrangement of travel and lodging by FELLO. Renter acknowledges that as a result, all on-site support fees are 100% non-refundable once booked, regardless of when the Renter requests cancellation, or the reason for Renter's request to cancel.
14.1 Renter may request that FELLO customize the rented Equipment prior to delivery and FELLO may, at its option, agree to do so. The customization (hereinafter referred to as FELLO’s Custom Media Installation or “CMI”) may include the installation of content, settings, software or other custom configurations or imaging. The CMI requested by Renter may be determined by FELLO, in its sole discretion, and after submission to FELLO by Renter of its written customization specification, to be a basic level customization (“Basic CMI”) or an advanced customization (“Advanced CMI”).
14.2 If Renter requests customization, the cost of the Basic CMI (which may be enhanced in accordance with Section 14.5, below) will be included in the initial rental fee
14.3 Renter must submit its detailed customization specification to FELLO, in writing, no less than ten (10) days prior to the commencement of the Rental Period. Written submissions must be timely submitted by Renter through FELLO’s online form (http://cmi.flyingconnected.com/cmi-form/). A Custom Media Installation form is generated by the link, which upon acknowledgment of acceptance by FELLO, is incorporated into and made a part of the MRA. In the event that Renter executes this MRA less than ten (10) days prior to the commencement of the Rental Period, then Renter must submit its detailed customization specification to FELLO, in writing, within twenty-four (24) hours after execution of this MRA. Failure of Renter to so submit its detailed customization specification to FELLO, in writing, will result both in a cancellation fee equal to the cost of the CMI and termination of FELLO’s obligation to customize the rented Equipment.
14.4 In the event that FELLO determines that the customization requested by Renter is a Complex CMI, FELLO will quote a fee for such customization to Renter. In the event Renter determines that it does not wish to proceed with the customization, then FELLO will refund or credit, as appropriate, the Basic CMI fees already paid by Renter,
14.5 Renter understands and agrees that if FELLO determines, in its sole discretion, that an unreasonably brief period has been provided for the customization, then an enhanced “rush” fee may be applied to both the Basic CMI and the Advanced CMI.
14.6 The detailed customization specifications first submitted in writing by Renter to FELLO in accordance with this Section 14 constitute Renter’s final specifications. Any subsequent modifications submitted by Renter to such final specifications constitute a new request for customization and, if agreed to by FELLO, are subject to additional fees.
14.7 In the event an error is made by FELLO in providing the CMI, FELLO will provide a refund to Renter of all or part of the fee charged therefore depending on the severity of the consequences of said error. The amount of the refund will be determined by FELLO, in its sole discretion. In no event will the refund exceed the amount paid by Renter for the CMI.
14.8 Renter acknowledges that all quotes and estimates provided by FELLO prior to receipt of the Renter's completed CMI form are approximations. If the services, products or scope of work requested by Renter vary in the submitted CMI form from prior discussions or representations of Renter, FELLO is entitled to adjust final pricing accordingly.
14.9 Renter acknowledges that On-Site Technical support may not be available for all locations or dates.
14.10 Fello may make recommendations concerning the required number of personnel for Renter’s event(s) in order to make sure the on-site technical support can handle the anticipated needs of the event(s). Renter acknowledges that by accepting fewer personnel than the number recommended by Fello, Renter may not receive the level of technical support appropriate to serve its event(s).
14.11. If the customer fails to complete the FELLO CMI form as requested, FELLO cannot guarantee any iPad configurations or setup. FELLO will also not refund any fees associated with the CMI should Renter fail to provide all of the requested information in the CMI form in a timely manner.
15. Data Coverage
15.1 FELLO is not responsible for service/data coverage for any Equipment. Data service/reception/coverage is the responsibility of Renter. No refund will be given for any issues of data service/reception/coverage during the Rental Period.
15.2 FELLO cannot guarantee or warrant the functionality, reliability of, or access to Wi-Fi access, data coverage or internet service(s) provided by a third-parties. The Renter understands that FELLO is not responsible for the quality or availability of internet connections and data access on premises owned or leased by a third-party.
15.3 FELLO does not guarantee that products, services, applications or any websites accessible via its Equipment or Software are error or virus free, and dealings that the Renter (or any End User) may have with promotions, services or merchants via the rented Equipment and/or software are solely between the Renter (and/or the individual End-User) and the third-party with whom they are dealing.
16.1 The rental charges do not include consumable products (i.e., inks, laser printer toners, etc.). Renter agrees to use only consumable products which are approved by the manufacturer of the Equipment and to not use re-inked or refurbished consumables. Any consumables supplied with the Equipment will be paid for by Renter.
17. Taxes and Government Fees
17.1 Unless otherwise specified, the rental charges shall exclude all taxes. Should additional taxes or government fees be introduced, or the rate of any applicable tax or governmental fee change, then FELLO reserves the right to adjust the rental charges to include such changes or new taxes or government fees.
17.2 New Jersey Rentals: New Jersey sales tax will be applied to all rentals shipped within New Jersey.
18.1 If any operating system or application software is included in the MRA, Renter warrants that the only copies of the same which are made will be solely for the purpose of security backup. Renter will destroy any such back-up copies at the completion of the Rental Period or any extension thereof.
18.2 Where Renter has requested FELLO to install software other than the operating system on Equipment, Renter warrants that it is the holder of a legitimate license to the software and has the right to install the software. Renter agrees to indemnify and keep FELLO indemnified against any loss or damage arising from or in connection with the installation or use of the software.
18.3 FELLO does not determine or control what operating system or application software is used with the Equipment. Therefore, FELLO does not warrant the correct or satisfactory operation of any operating system or application software used with the Equipment and Renter shall not be entitled to a refund of any fees in the event the operating system or application software malfunctions or does not operate satisfactorily.
18.4 If Renter requests that FELLO create or provide proprietary or "in-house" software pursuant to this Agreement or through FELLO's "GlitzPad" service, Renter agrees that any and all software is delivered AS-IS and without any warranties. Renter agrees to not alter, remove, replace or copy any software provided pursuant to this subsection. Renter further agrees to abide by the GlitzPad Terms of Service, which may be amended and revised from time-to-time and without notice to the Renter.
19.1 EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS AGREEMENT, FELLO MAKES NO WARRANTIES, CLAIMS OR REPRESENTATIONS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE EQUIPMENT, INCLUDING, WITHOUT LIMITATION, IMPLIED CONDITIONS OR WARRANTIES OF QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
20. Limitation of Liability
20.1 Neither FELLO nor any of its Affiliates nor any of their contractors, agents, employees and/or licensees are liable for any damage, injury or loss to any person or property arising from the possession, operation or use of the Equipment (including, but not limited to, lost time or data, loss of use, or any other damages resulting from breakdown or failure of Equipment, or from delays in replacement or repair of Equipment), or any other circumstances related to the MRA and the carrying out of the services contained therein, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise. Additionally, FELLO shall not be liable for damages that are remote or speculative, or that could not have reasonably foreseen.
FELLO's liability for anything in relation to the Equipment and its use, including damage or economic loss, is limited to the maximum extent permitted by law. In any event FELLO's liability is limited, at FELLO's option to:
(a) the replacement of the relevant Equipment with the same or equivalent Equipment; or
(b) the repair of the relevant Equipment; or (c) reimbursement of the rental fee for the relevant Equipment for the affected portion of the Rental Period.
20.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the agreement.
20.3 The Renter expressly agrees that FELLO's maximum liability shall not exceed the total fees paid for the Rental, and FELLO shall not be liable for--nor shall Renter be entitled to--any speculative, special or punitive damages with respect to this Agreement.
21.1 Confidential information (hereinafter "Confidential Information") disclosed in anticipation of, or during the pendency of, this MRA, shall be maintained in confidence by the parties in accordance with the terms and conditions set forth in this MRA.
21.2 The parties may from time to time develop, receive, or have access to Confidential Information in whole or in part the property of the other. Each party agrees to maintain in confidence all such Confidential Information and will not directly or indirectly use, disseminate, lecture upon, publish, disclose, or divulge the same to any persons whomsoever without the prior written consent of the other. Confidential Information shall mean any information and data of a confidential nature, including but not limited to proprietary, developmental, technical, marketing, sales, operating, performance, cost, knowhow, policy, business, and process information, computer programming techniques, and all record bearing media containing or disclosing such information or techniques. Confidential Information shall not be deemed to be in the public domain merely because any part of said information is embodied in general disclosures or because individual features, components, or combinations thereof are now or become known to the public.
21.3 Each party shall advise all of its employees, officers, agents and representatives, including any subcontractors where applicable, of the terms and conditions of this MRA regarding Confidential Information, and require them to observe such conditions with respect to Confidential Information.
21.4 Recipient's obligations of confidentiality as set forth herein shall not apply to any Confidential Information which: (i) is already in the public domain at the time of disclosure or later becomes available to the public through no breach of this MRA by recipient; (ii) was, as between recipient and discloser, lawfully in recipient's possession prior to receipt from discloser without obligation of confidentiality; (iii) is received by recipient independently from a third party free to lawfully disclose such information to recipient; (iv) is subsequently independently developed by recipient without use of discloser's Confidential Information, as evidenced by recipient's business records; or (v) recipient is required to disclose by a governmental authority having proper jurisdiction, provided that recipient promptly notifies discloser of such request.
22. Assignment and Sale
22.1 Neither of the parties hereto may sell, transfer, assign or otherwise dispose of any of its rights or obligations under this MRA to any other entity without the express prior written consent of the other party. Notwithstanding the foregoing, each party shall have the right to transfer and assign its interest in this MRA, in whole or in part, with the sale, merger, transfer or other disposition of that part of such party’s business related to the subject matter of this MRA. Subject to the provisions of this Section 22, this MRA will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and assigns.
23. Dispute Resolution
23.1 This MRA shall be governed by, and construed in accordance with, the laws of the State of New Jersey, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of New Jersey or any other jurisdiction) to the extent such rules or provisions would cause the application of the laws of any jurisdiction other than the State of New Jersey.
23.2 With respect to any dispute arising out of or related to this Agreement, the parties consent to the exclusive jurisdiction of the federal and state courts located in Bergen County, New Jersey.
23.3 If any action or proceeding relating to this MRA or the enforcement of any provision of this MRA is brought by any part, the prevailing party shall be entitled to recover reasonable attorney’s fees, costs and disbursements (in addition to any other relief which the prevailing party may be entitled).
24.1 Renter understands that FELLO does not provide Apple IDs for usage by the Renter. If the Renter requires the installation of a third-party application, Renter is expected to obtain its own Apple ID. Renter is also responsible for maintaining the security of its passwords and for providing the equipment unlocked and accessible by FELLO at return.
24.2 Renter agrees to not leave any ID’s, pins or passwords on the iPads or other Equipment, particularly Apple Ids and iCloud Accounts. Failure to comply with this Section 24 may result in your rental being considered as not returned and late fees may be applied until Fello can wipe the Equipment of all non-factory installed data.
25. General Provisions
25.1 Change of Address. Renter will notify FELLO without delay of any change of address, telephone number or e-mail during the period of this Rental Agreement.
25.2 No Third-Party Beneficiaries. This MRA is solely for the benefit of the parties hereto, and nothing in this MRA will be deemed to create any third-party beneficiary rights in any person or entity not a party to this MRA.
25.3 Notices. Unless otherwise agreed by the parties, all notices required under this MRA (excepting only those notices where e-mail communications are authorized by this MRA) will be deemed effective when received and made in writing by either (a) personal delivery, (b) nationally recognized courier service, or (c) certified mail, return receipt requested, at the respective addresses first set forth above.
25.4 Governing Law. The parties agree that this MRA will be governed by the laws of the State of New Jersey without regard to its conflicts of laws principles.
25.5 Severability If any term or condition of this Rental Agreement or the application thereof is or becomes invalid or unenforceable, the remaining terms and conditions shall remain in full force and effect and the invalid term or provision will be replaced by such valid term or provision as comes closest to the intention underlying the invalid term or provision, unless the invalid or unenforceable term or condition frustrates the purpose of this MRA, in which event this MRA shall terminate.
25.6 No Agency; Independent Contractors. Neither party shall, for any purpose, be deemed to be an agent of the other party. The relationship between the parties shall only be that of independent contractors. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.
25.7 Form of Execution. Execution of this MRA may be accomplished electronically, signed by hand on a printed paper copy, or by facsimile transmission of a hand signed printed paper copy or an electronic copy. Each form of execution shall be deemed binding and legally sufficient.
25.8 Counterparts. This MRA may be executed in multiple counterparts, each of which shall be deemed an original, and all of which shall be deemed to constitute one and the same agreement.
25.9 Interpretation This MRA shall be fairly interpreted in accordance with its terms and conditions and the terms and conditions shall not be strictly interpreted in favor of or against either party to this MRA. The use of the singular or plural form shall include the other form and the use of the masculine, feminine or neuter gender shall include the other.
25.10 Headings The headings used in this MRA are for purposes of reference only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.
25.11 Force Majeure. Fello shall not be liable for, nor shall Fello be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of electronic or telephone communications, pandemics, public health emergencies, power or other utility, labor problem, unavailability of supplies, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by such party with reasonable care (each, a "Force Majeure Event"). If Fello claims the benefit of this provision, it shall, as soon as reasonably practicable after the occurrence of any such event, (a) provide written notice to the other Party of the nature and extent of any such Force Majeure condition; and (b) use commercially reasonable efforts to remove any such causes and resume performance under this Agreement, if it is able to, as soon as reasonably practicable. If Fello makes a determination, in its sole and reasonable discretion, that it cannot carry out its obligations under this Agreement due to the occurrence of any Force Majeure Event (defined above), it will have the right to terminate this Agreement upon written notice to the other party.
25.12 Effective Date This MRA shall become effective upon execution by Renter.
26. Schedule of Fees
26.1 The fees set forth in this Section 25 are subject to amendment by FELLO with or without notice to Renter. Where no “Late Fee” is stated, only the Replacement Cost will be charged pursuant to Section 2.1 of this MRA (i.e., if the item has not been received by Fello by the fifth (5th) day after the end of the Rental Period, the Replacement Cost will be charged to the Renter).
Late Fee (Per Day)
iPad Air 1 WiFi
iPad Air 1 4G
iPad Air 2 WiFi
iPad Air 2 4G
iPad Mini 2 WiFi
iPad Mini 2 4G
iPad Mini 4 WiFi
iPad Mini 4 4G
iPad 5th Gen WiFi
iPad 5th Gen 4G
iPad Pro 9.7 WiFi
iPad Pro 9.7 4G
iPad Pro 12.9” WiFi
iPad Pro 12.9” 4G
iPhone 6S Plus
iPhone 7 Plus
Cases, Stands, Input Devices
Belkin Keyboard Case
Desktop Swivel Stand
Durable Desktop Stand
Durable Floor Stand
Case Stand w/ Hand Strap
iPad Mini Shockproof Case
Ultra Security Case
Lock Case w/ Keys:
iPad Transport & Charge Case
Apple Magic Keyboard
Apple Pencil 2nd Gen
iPhone SE Protective Case
iPhone 6S Plus Protective Case
iPhone 7 Plus Protective Case
Floor Mount (Pole)
Pro Head Unit Cable
USB Extension Cable
H Head with Headphone Access
P Head with Headphone Access
ATA Shipping Case for Lilitab Stand
Square Register (Console & Display)
Contactless and Chip Reader
Dock for Square Reader
Square Reader for Magstripe
Scanners and Printers
TSP143IIILAN LAN Printer
TSP143IIIU Receipt Printer
TSP143IIIBI WT US Bluetooth Printer
SP742MU Kitchen Printer
SP742ME Kitchen LAN Printer
TSP654IIBI2 Bluetooth Receipt Printer
SM-T300i Portable Bluetooth Printer
mPop w/ Scanner
mPop Handheld Barcode Scanner
Symbol LS2208 Barcode Scanner
Socket Bluetooth Scanner
16" USB Cash Drawer
13" RJ12 (Printer-Driven) Cash Drawer
Cash Drawer Key
Cash Drawer Till
4G LTE Devices
AER2100 Cradle Router
Cradlepoint Router Power Supply
4G Antenna 170649-000
WiFi Antenna 170628-000
Jetpack Mifi 7730L
Power and Cables
iPad Lightning Cable
iPad A/C Adapter
Anker PowerCore 20100
GoalZero Yeti Battery
Printer Power Cable
USB Printer Cable
Anker Lightning Cable 3'
Anker Lightning Cable 10'
10M (10 iPad's)
20M (20 iPad's)
Square Stand Foam
Square Register Foam Lid
Cash Drawer Foam
Cvent CC Reader
27. Menu Setup Services
27.1 The Renter at Renter’s option may purchase Menu Setup Services from FELLO, which generally includes the design and implementation of custom menus or interfaces on the Renter’s POS or other Rented Device. The scope of the Menu Setup Services shall not be extended except in a signed writing between the Parties.
27.2 The Renter acknowledges that Menu Setup work is tailored to each Renter’s needs and therefore the amount of time to complete the Menu Setup will vary based on the scope and complexity of the Renter’s project needs.
27.3 Menu Setup services are billed at an hourly rate of $100.00. There is a minimum charge is $100 (a minimum of 1 hour). Any time spent on the Menu Setup services beyond the first hour are billed out to the Renter in quarter (¼) hour increments of $25.00.
27.4 FELLO will provide Renter with an invoice for the time spent on Menu Setup Services, which is payable by the Renter upon receipt. (If the Renter has a card on file with FELLO, however, Renter authorizes FELLO to charge the card).
27.5 Orders for Menu Setup Services must be placed with FELLO no later than two (2) weeks prior to the Rental Start Date. FELLO reserves the right to accept Menu Setup Services orders that are placed less than two (2) weeks prior to the Rental Start Date, but a 10% “Rush” charge will be applied to invoices.
28. Acknowledgement by Educational and Healthcare Provider Renters
28.1 If Renter is an Educational Provider, as defined above, Renter acknowledges that notwithstanding any other provisions set forth above, Renter will bear primary responsibility for the protection and return of all Rental Hardware and/or Accessories that it rents from Fello, irrespective of whether or not the Rental Hardware and/or Accessories may be used third parties (e.g., students, teachers, staff, etc.). Renter will make its best efforts to secure the Rental Hardware and/or Accessories from all damage or loss and return all Rental Hardware and/or Accessories in a timely manner as provided in the MRA. Renter acknowledges that the payment of charges, including any fees relating to damage, loss or late return of the Rental Hardware and/or Accessories will be the Renter’s responsibility, regardless of the cause of damage, loss or late return (e.g., if damage or loss caused by use of equipment students, teachers or other third parties, etc., the Renter will bear full responsibility for all damage or replacement charges).
28.2 If Renter is a Healthcare Provider, as defined above, Renter acknowledges that notwithstanding any other provisions set forth above, Renter will bear primary responsibility for the protection and return of all Rental Hardware and/or Accessories that it rents from Fello, irrespective of whether or not the Rental Hardware and/or Accessories may be used by third parties (e.g., patients, visitors or staff, etc.). Renter will make its best efforts to secure the Rental Hardware and/or Accessories from all damage or loss and return all Rental Hardware and/or Accessories in a timely manner as provided in the MRA. Renter acknowledges that the payment of charges, including any fees relating to damage, loss or late return of the Rental Hardware and/or Accessories will be the Renter’s responsibility, regardless of the cause of damage, loss or late return (e.g., if damage or loss caused by use of equipment patients, visitors or staff, etc., the Renter will bear full responsibility for all damage or replacement charges).
29. Entire Agreement
29.1 This MRA contains the entire agreement, to date of execution thereof, of the parties with respect to the subject matter hereof and supersedes in all respects all prior or contemporaneous proposals, negotiations conversations, discussions, writings and agreements between the parties concerning the subject matter of this MRA. This MRA may not be modified or terminated orally, and no claimed modification, termination, or waiver shall be binding unless in a writing stating an intent to modify the terms of this MRA and identifying the portion to be modified, which writing is signed by a duly authorized representative of the party against whom such claimed modification, termination or waiver is sought to be enforced.