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Terms and Conditions
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RENTAL TERMS AND CONDITIONS


CUSTOMER IS BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THOSE ON THE REVERSE SIDE OF THIS AGREEMENT, AND ANY APPLICABLE SOFTWARE LICENSE AGREEMENT.  CUSTOMER SIGNATURE IS NOT REQUIRED.  The distinctions among an alternative purchase plan or lease transaction, a rental transaction, and a sales transaction result in different terms and conditions which are stated below:

PART A. ALTERNATIVE PURCHASE PLAN OR LEASE TERMS AND CONDITIONS.  If customer rents or purchases Equipment from ORIX USA Corporation (hereinafter called "ORIX") pursuant to ORIX’s Alternative Purchase Plan Agreement (APP) or lease, the terms and conditions of the APP or lease shall control such transaction and supersede the terms and conditions of this Agreement, unless otherwise agreed in writing signed by both parties.  For such APP or lease transactions, this document shall constitute a delivery notice only.

PART B. RENTAL TERMS AND CONDITIONS.  Customer hereby rents from ORIX the equipment listed on the reverse side hereof (Equipment) pursuant to the applicable terms and conditions on the reverse side and the following terms and conditions:

1. RENTAL TERM.  The equipment described on the reverse side (Equipment) is rented on a monthly basis with a one month minimum rental term.  The Rental Term shall commence on the date ORIX ships the Equipment to Customer and shall automatically extend, on a month-to-month basis, upon all the terms and conditions hereof until the date the Equipment is returned to the possession and control of ORIX, notwithstanding that any different Rental Term is set forth on Customer’s purchase order or on the reverse side hereof.  Customer authorizes ORIX to insert on the reverse side hereof the applicable information pertaining to this transaction.

2. RENT.  Customer shall pay ORIX each month during the Rental Term the Monthly Rental Fee shown on the reverse side for each item of Equipment together with all sales and use taxes imposed thereon.  At ORIX’s election, each Monthly Rental Fee shall be due (a) if billed in advance, within 30 days after the date of ORIX’s invoice therefor, or (b) if billed in arrears, immediately upon receipt of ORIX’s invoice therefor or within such period of time as is specified in ORIX’s invoice.  Customer shall pay a one-time service charge equal to 5% of the Monthly Rental Fee or other amount (with a minimum of $5 and a maximum of $100) for each Monthly Rental Fee or other amount not paid within 30 days after its due date. If specified on the reverse side, a Security Deposit will be held as security against payment of rent, return of Equipment and performance of all other obligations of Customer hereunder and will be refunded to Customer, without interest, upon performance of all obligations hereunder.  In the event that the actual Rental Term for an item of Equipment is less than the Rental Term indicated on the reverse side hereof, Customer shall forfeit and pay ORIX any discounts granted upon the length of the Rental Term.

3. DEFAULT AND REMEDIES:  Upon any default by Customer of any of its payment obligations or other obligations or reduction in the monthly rental fee contained in this Agreement, or if Customer files or has filed against it any petition or proceeding under any bankruptcy, reorganization, insolvency or similar law, or if Customer repudiates its obligations hereunder or becomes insolvent, dissolves, ceases business or is generally not paying its debts as the same become due, or if any Equipment is levied against, seized or attached, or if Customer is in default under any other agreement with ORIX, ORIX shall have the right to exercise any one or more of the following remedies which are cumulative and not alternative:  (a) terminate this Agreement and recover possession of the Equipment; (b) recover all Monthly Rental Fees then due and unpaid and all future Monthly Rental Fees until the Equipment is returned to ORIX as such Monthly Rental Fees become due; (c) demand that Customer return, and Customer shall return, all Equipment, provided that if Customer fails to return all Equipment within 5 days of ORIX’s demand, Customer shall be obligated to pay to ORIX, immediately, a sum of cash equal to the replacement value of any Equipment not returned to ORIX; and (d) such other rights and remedies as are available to ORIX under applicable law.  ORIX shall be entitled to all costs and expenses (including legal fees and costs) incurred by ORIX in enforcing any of the terms or provisions of this Agreement.

4. DELIVERY, INSTALLATION & RETURN:  All equipment is provided F.O.B. ORIX’s applicable distribution center.  Shipment will be made to the Equipment Location, at Customer’s risk and expense, and Customer shall reimburse ORIX for any shipping and handling charges incurred by ORIX.  Unless Customer notifies ORIX to the contrary in writing within 72 hours after receipt of an item of Equipment, it shall be conclusively presumed that the item of Equipment was delivered to Customer in good operating condition, that the Equipment conforms in all respects to Customer’s order and that Customer has accepted the Equipment for all purposes under this Agreement.  Customer shall return the Equipment in good operating condition to ORIX at the end of the Rental Term by prepaid insured shipment to the distribution center designated by ORIX.

5. LIMITED WARRANTY; EXCLUSIVE REMEDY; EXCLUSION OF WARRANTIES:  The sole and exclusive warranty made by ORIX is the LIMITED WARRANTY that each item of Equipment, when shipped to Customer, will be in good operating condition.  Equipment shipped directly from a supplier may require supplier installation to assure good operating condition.  In such case, ORIX’s warranty takes effect only upon such installation by supplier.  CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF ANY EQUIPMENT TO CONFORM TO SUCH LIMITED WARRANTY SHALL BE THAT ORIX, AT ITS ELECTION, MAY (1) REPAIR OR REPLACE ANY ITEM OF EQUIPMENT THAT IS NOT IN GOOD OPERATING CONDITION WHEN SHIPPED TO CUSTOMER OR (2) TERMINATE THIS AGREEMENT WITHOUT ANY LIABILITY TO CUSTOMER.  THE FOREGOING LIMITED WARRANTY AND REMEDY ARE THE EXCLUSIVE WARRANTY AND REMEDY AND ARE IN LIEU OF ANY ORAL REPRESENTATION AND ALL OTHER WARRANTIES AND REMEDIES, WHETHER IMPLIED OR STATUTORY, OTHER THAN THE FORGOING LIMITED WARRANTY, ORIX HAS NOT MADE AND DOES NOT NOW MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE DESIGN COMPLIANCE WITH SPECIFICATION, OPERATION, OR CONDITION OF ANY EQUIPMENT (OR ANY PART THEREOF), THE MERCHANTABILITY OR FITNESS OF ANY EQUIPMENT FOR A PARTICULAR PURPOSE, OR ISSUES REGARDING PATENT INFRINGEMENT, TITLE AND THE LIKE.  IT IS FURTHER AGREED THAT ORIX SHALL HAVE NO LIABILITY TO CUSTOMER, OR THE CUSTOMERS OF CUSTOMER, OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES BASED ON STRICT AND ABSOLUTE TORT LIABILITY, OR ORIX’S NEGLIGENCE OR OTHERWISE, CUSTOMER AGREES THAT ORIX SHALL NOT BE LIABLE FOR ANY DELAY IN DELIVERY OR INSTALLATION OF, OR ANY FAILURE TO DELIVER OR INSTALL, ANY EQUIPMENT.  CUSTOMER HAS SELECTED ALL EQUIPMENT FOR CUSTOMER’S INTENDED USES WITHOUT ORIX’S ASSISTANCE, AND RECOGNIZES THAT ORIX IS NOT A MANUFACTURER OF ANY EQUIPMENT.

6. OWNERSHIP; PERSONAL PROPERTY; USE:  The Equipment shall remain the property of ORIX and ORIX retains the title thereto.  Customer shall keep the Equipment free from all claims, liens, security interests and encumbrances.  The Equipment shall at all times remain personal property, whether or not any Equipment shall become affixed to or a part of any real property or real property improvements.  Customer shall use the Equipment only at the Equipment Location and Customer shall not remove, transfer, alter or modify any item of Equipment without ORIX’s prior written consent.  ORIX may inspect the Equipment at any time.

7. UCC ARTICLE 2A:  TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE BY ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE.  TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER ALSO WAIVES ALL RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE WHICH MAY LIMIT OR MODIFY ORIX’S RIGHTS UNDER OR WITH RESPECT TO THIS AGREEMENT.

8. ASSIGNMENT AND WAIVERS:  THIS AGREEMENT AND ALL RIGHTS OF ORIX HEREUNDER AND TO THE EQUIPMENT SHALL BE ASSIGNABLE BY ORIX WITHOUT CUSTOMER’S CONSENT.  In the event of any such assignment of this Agreement, ORIX’s assignee shall have all of the rights, privileges, entitlements, powers and remedies of ORIX hereunder, but none of ORIX’s obligations.  Following such assignment, payments hereunder shall be made to such assignee and, solely for the purpose of determining assignee’s rights hereunder, the term ORIX as used herein shall be deemed to include or refer to any assignee of ORIX.  Customer waives and agrees not to assert against ORIX’s assignee any defense, claim, counterclaim, setoff or recoupment that Customer may have against ORIX, whether arising under this Agreement or otherwise.  Customer acknowledges and agrees that any assignment by ORIX will neither materially change Customer’s duties or obligations under this Agreement nor materially increase the burdens or risks imposed on Customer.  Customer agrees to provide any such assignee with an estoppel letter or certificate and such other documentation as ORIX or any such assignee may reasonably request confirming Customer’s absolute and unconditional obligations hereunder.  WITHOUT ORIX’S PRIOR WRITTEN CONSENT, CUSTOMER SHALL NOT ASSIGN OR GRANT A SECURITY INTEREST IN THE EQUIPMENT, THIS AGREEMENT OR ITS INTERESTS HEREUNDER OR ENTER INTO ANY SUB-LEASE WITH RESPECT TO THE EQUIPMENT.  No permitted assignment, security interest or sublease shall relieve Customer of any obligations hereunder.

9. SERVICE:  If so specified on the reverse side, ORIX shall, at its expense, provide full service of the Equipment, consisting of routine maintenance of all Equipment and the repair or replacement of any item of Equipment found to be defective during the Rental Term, all of which is provided at ORIX’s facilities unless otherwise specified by ORIX.  In the event an item of Equipment for which ORIX is providing service does not operate properly, Customer shall notify ORIX and request instructions before taking any remedial action or returning it to ORIX.  Customer shall bear cost of shipping such Equipment back to ORIX and ORIX shall bear the cost of the return shipment of such Equipment to Customer.  In the event that any item of Equipment requires repair or recalibration as a result of accident or Customer’s tampering or unauthorized repair or negligence, misuse, or abuse of such items, Customer shall bear the entire cost thereof, including any shipping costs.  If the self-service option is specified on the reverse side, ORIX will not provide any service and Customer shall be required to maintain the Equipment in proper working condition.

10. RISK OF LOSS; CARE OF EQUIPMENT; INSURANCE:  Customer is responsible for the safekeeping of all Equipment, and shall bear the risk of any loss of the Equipment for any reason, and shall insure each item of Equipment against loss or damage for not less than the replacement value of each item and if requested by ORIX shall provide evidence of such insurance.  At ORIX’s option, Customer shall either replace or pay the replacement cost of any item of Equipment which is lost, stolen, destroyed or damaged beyond repair.  Until an item has been repaired, replaced or the replacement cost thereof has been paid by Customer, the Rental Term shall continue and Customer shall continue to pay the Monthly Rental Fee with respect thereto.  Any item of non-expendable Equipment accessories, manuals and the like which is lost, destroyed or damaged or which is not returned to ORIX will be charged to Customer at full replacement cost (minimum $50).  All Equipment will be delivered to Customer with ownership labels, calibration seals and anti-tamper notice affixed, as shall be determined by ORIX.  Provided that ORIX is to perform service hereunder (pursuant to Section 9), Customer shall not permit such seals or notices to be removed or defaced; and if such seals or notices are removed or defaced, Customer shall pay a reasonable calibration or refurbishing fee.  Customer shall also carry public liability and third party property damage insurance, in amounts sufficient to cover its obligations under this Agreement.

11. CUSTOMER’S UNCONDITIONAL OBLIGATIONS:  CUSTOMER’S OBLIGATIONS ARE NON-CANCELABLE. CUSTOMER AGREES THAT ITS OBLIGATIONS TO PAY MONTHLY RENTAL FEES AND TO PERFORM ALL OTHER OBLIGATIONS HEREUNDER SHALL BE ABSOLUTE, IRREVOCABLE, UNCONDITIONAL AND INDEPENDENT AND SHALL BE PAID AND PERFORMED WITHOUT ABATEMENT, DEDUCTION OR OFFSET OF ANY KIND OR NATURE WHATSOEVER.

12. SOFTWARE:  Equipment includes any software provided therewith.  Software shall remain the property of its licensor.  The terms and conditions of any software license agreement covering the software are incorporated herein by reference and supersede anything to the contrary herein, and Customer agrees to be bound by such terms and conditions, particularly those limiting the use and transfer of the software.  Except as otherwise permitted therein, Customer shall use the software only with the Equipment and shall not copy, remove, sublicense, rent, transfer, assign, sell, alter, modify or encumber the software without licensor’s prior written consent.  Software is warranted only to the extent provided for directly by the licensor.  ORIX makes no warranty as to the performance of any software.

13. OBJECTIONS TO AGREEMENT:  If Customer objects to any terms and conditions of this Agreement or has any objection to the suitability  of any Equipment or its acceptability for any purpose under this Agreement, Customer shall notify ORIX in writing of Customer’s specific objections within 72 hours after receipt of this Agreement.  Any such objections shall not be binding upon ORIX unless received by ORIX within such period and ORIX agrees in writing to such amendments to the Agreement.  The parties understand and agree that ORIX has the right to reject Customer’s objections to this Agreement and/or the Equipment, and ORIX, at its election may terminate this Agreement.  If such termination occurs, Customer immediately shall return the Equipment in good operating condition by prepaid insured shipment to the specified ORIX distribution center and shall pay any amounts due thereon to ORIX.

14. INDEMNIFICATION OF ORIX:  Customer shall indemnify, hold harmless, and, if so requested by ORIX, defend ORIX against all claims (Claims) directly or indirectly arising out of or in connection with the Equipment or this Agreement.  Claims refer to all losses, liabilities, damages, penalties, expenses (including legal fees and costs), claims, actions, and suits, whether in contract or in tort, whether caused by ORIX’s negligence or otherwise, and whether based on a theory of strict liability of ORIX or otherwise, and includes, but is not limited to, matters regarding: (a) the selection, manufacture, purchase, acceptance, rejection, ownership, delivery, lease, possession, maintenance, use, condition, return or operation of the Equipment; (b) any latent defects or other defects in any Equipment, whether or not discoverable by ORIX or by Customer; (c) any patent, trademark, or copyright infringement; and (d) the condition of any Equipment arising or existing during Customer’s use.

15. TAXES:  Customer shall be responsible for and shall pay all sales, use and personal property  taxes that may be imposed by any taxing authority on the Equipment or its rental, use or purchase hereunder.

16. ORIX PERFORMANCE OF CUSTOMER OBLIGATIONS:  If Customer fails to perform any of its obligations hereunder, ORIX may, but shall not be obligated to, perform any act or make any payment that ORIX deems reasonably necessary for the maintenance and preservation of the Equipment and ORIX’s interests therein; provided, however, that the performance of any act or payment by ORIX shall not be deemed a waiver of, or release Customer from, the obligation at issue.  All sums so paid by ORIX, together with expenses (including legal fees and costs) incurred by ORIX in connection therewith, shall be paid to ORIX by Customer immediately upon demand.

17. WAIVER OF JURY TRIAL:  CUSTOMER AND ORIX HEREBY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY COURT AND IN ANY ACTION OR PROCEEDING AS TO ALL MATTERS AND THINGS ARISING OUT OF OR RELATING, DIRECTLY OR INDIRECTLY, TO THIS AGREEMENT AND THE RELATIONS BETWEEN THE PARTIES HEREUNDER.

18. OTHER PROVISIONS:  THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF NEW YORK.  Customer represents and warrants that, unless it is an individual, Customer is duly organized, validly existing and in good standing, and that Customer has the power and authority to enter into this Agreement.  This Agreement shall be enforceable against Customer in accordance with its terms.  The terms and conditions of this Agreement supersede and replace any inconsistent provisions set forth in any purchase order of Customer relating to any Equipment.  Customer hereby authorizes ORIX to obtain credit bureau reports and make such other credit inquiries as ORIX deems necessary.  Customer shall provide ORIX with such corporate resolutions, opinions of counsel, financial statements, executed software sublicense agreements, and other documents (including UCC Financing Statements and other documents for filing and recording) as ORIX shall request from time to time.  If more than one Customer is named in this Agreement, the liability of each shall be joint and several.  Customer represents and warrants that Equipment is being rented or purchased hereunder, as applicable, for business purposes and not for personal, family or household purposes.  Any failure of ORIX to require strict performance by Customer or any waiver by ORIX shall not be construed as a waiver of any other breach of the same or any other provision.  THE TERMS HEREOF SET FORTH THE ENTIRE AGREEMENT BETWEEN ORIX AND CUSTOMER WITH RESPECT TO THE EQUIPMENT AND SHALL NOT BE AMENDED EXCEPT IN WRITING SIGNED BY BOTH PARTIES.

PART C.  SALES TERMS AND CONDITIONS.  If ORIX agrees to sell the Equipment to Customer, Customer shall be entitled to purchase the Equipment, pursuant to the applicable terms and conditions listed on the reverse side of this Agreement and the following terms and conditions:

1. PURCHASE PRICE.  Customer shall pay to ORIX the purchase price as set forth under Sales Amount for each item of Equipment (plus any taxes imposed thereon) upon receipt of the Equipment.  Customer authorizes ORIX to insert on the reverse side hereof the applicable information pertaining to this transaction.  Customer hereby grants ORIX a security interest in the Equipment as security for its obligations hereunder.

2. EXCLUSION OF WARRANTIES.  UNLESS A LIMITED WARRANTY IS SPECIFICALLY SET FORTH IN WRITING BY ORIX, ORIX HAS NOT MADE AND DOES NOT NOW MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE DESIGN, COMPLIANCE WITH SPECIFICATIONS, OPERATION, OR CONDITION OF ANY EQUIPMENT (OR ANY PART THEREOF), THE MERCHANTABILITY OR FITNESS OF ANY EQUIPMENT FOR A PARTICULAR PURPOSE, OR ISSUES REGARDING PATENT INFRINGEMENT, TITLE AND THE LIKE.  IT IS FURTHER AGREED THAT ORIX SHALL HAVE NO LIABILITY TO CUSTOMER, OR CUSTOMERS OF CUSTOMER, OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR ORIX’S NEGLIGENCE OR OTHERWISE.  CUSTOMER AGREES THAT ORIX SHALL NOT BE LIABLE FOR ANY DELAY IN THE DELIVERY OR INSTALLATION OF, OR ANY FAILURE TO DELIVER OR INSTALL, ANY EQUIPMENT.  CUSTOMER ACKNOWLEDGES THAT IT HAS SELECTED ALL EQUIPMENT FOR CUSTOMER’S INTENDED USES WITHOUT ORIX’S ASSISTANCE, AND RECOGNIZES THAT ORIX IS NOT A MANUFACTURER OF ANY EQUIPMENT.

3. SOFTWARE.  In no event shall these sales terms and conditions apply to any software provided herewith.  Software is available for use only under license by its owner and is not for sale.

4. DELIVERY.  All Equipment is provided F.O.B. the applicable ORIX inventory center, or in-place as to Equipment subject to a rental or lease arrangement.  Shipment will be made as specified by Customer and at Customer’s expense.  Equipment shall not be shipped via mail.  Customer shall reimburse ORIX for any shipping and handling charges incurred by ORIX.

5. OTHER PROVISIONS.  Sections B13, B14, B15, B17, and B18 above shall also apply to sales of Equipment hereunder.