By placing a check in the “I ACCEPT” BOX, CUSTOMER HEREBY ACKNOWLEDGES THAT CUSTOMER HAS READ THIS EQUIPMENT SUBSCRIPTION AGREEMENT, AND UNDERSTANDS AND AGREES TO ALL THE TERMS AND CONDITIONS HEREIN. CUSTOMER FURTHER AGREES THAT THIS AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN CUSTOMER AND FUJITSU COMPUTER PRODUCTS OF AMERICA, INC. (“FCPA”) AND SUPERSEDES ANY PROPOSAL OR PRIOR AGREEMENT, BOTH ORAL AND/OR WRITTEN, AND ANY OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. CUSTOMER FURTHER AGREES THAT IF FCPA IS REQUIRED TO ENGAGE IN ANY PROCEEDING, LEGAL OR OTHERWISE, TO ENFORCE ITS RIGHTS UNDER THIS AGREEMENT, FCPA SHALL BE ENTITLED TO RECOVER DAM AGES FROM YOU, IN ADDITION TO ANY OTHER SUMS DUE, REASONABLE ATTORNEY FEES, COSTS, AND DISBURSEMENTS.
This Short-Term Equipment Subscription Agreement (this “Subscription Agreement”, “Agreement” or “Subscription”), effective as of the date you place your order (“Effective Date”) on https://fujitsuscannerstore.com/ (“Site”), is entered into by and between Fujitsu Computer Products of America, Inc. located at 1250 East Arques Avenue Sunnyvale, CA 94085 (“FCPA”), and Customer located at the billing address provided on the Effective Date.
Capitalized terms used in this Subscription Agreement without definition have the meanings ascribed to them in Section 25.
1. PURPOSE OF SUBSCRIPTION AGREEMENT. The purpose of this Subscription Agreement is to set forth the general terms and conditions upon which Customer shall subscribe for and agrees to accept from FCPA, items of Hardware, Software or both (such Hardware and Software being collectively referred to as “Equipment”).
2. COMMENCEMENT PROCEDURES AND TERM. Subject to the other terms and conditions contained herein, Customer shall enter into a Subscription Agreement with FCPA. The initial term of such Agreement shall begin five (5) days after the Effective Date and shall continue for a period of six (6) months (“Initial Term”).
3. FEES; PAYMENT TERMS. As fees (“Fees”) for the Equipment, Customer agrees to pay the amounts as specified. Customer’s credit card on file will be charged initially when the Equipment is shipped and monthly thereafter until the Subscription Agreement is terminated. If Customer should terminate the Subscription Agreement during the Initial Term, in addition to returning all Equipment, any and all Fees owed during the remainder of the Initial Term, shall become immediately due and payable to FCPA.
4. CUSTOMER’S END-OF-SUBSCRIPTION-TERM OPTIONS; AUTOMATIC EXTENSION. Customer shall have the following options in respect of the Subscription:
a. Renewal. Customer may elect, to renew the Subscription with respect to the Equipment. In the event of such an election, the Subscription Agreement shall be automatically extended for successive calendar months with respect to all items of Equipment then subject to such Subscription (such period the Subscription is to be renewed is termed the “Renewal Term”) and Customer shall be subject to the terms and conditions of this Agreement during any Renewal Term. For each calendar month that the Subscription is so extended, Customer shall pay to FCPA, Fees in an amount equal to the monthly Fees payment in effect immediately prior to such extension (or the appropriate pro rata portion of the Fees payment then in effect in the case of Fees payable other than on a monthly basis), and all other provisions of this Subscription Agreement shall continue to apply.
b. Termination and Return. Customer may elect, by delivering to FCPA, an End-of-Term Notice at least 30 days prior to the expiration of the Initial Term, or any Renewal Term, and by returning all of the Equipment then subject to the Subscription in accordance with Section 8 of this Subscription Agreement. FCPA may elect, by delivering to Customer, an End-of-Term Notice at least 30 days prior to the expiration of the Initial Term, or any Renewal Term. Should FCPA terminate this Subscription Agreement under this provision, Customer shall then return all of the Equipment then subject to the Subscription in accordance with Section 8 of this Subscription Agreement.
5. ACCEPTANCE OF EQUIPMENT. The Customer shall inspect each item of Equipment delivered pursuant to this Agreement. The Customer shall immediately notify the FCPA of any discrepancies between the Equipment and the description of the Equipment in the Order. If the Customer fails to provide such notice in writing within two (2) calendar days after the delivery of the Equipment, the Equipment will be deemed accepted by Customer. Any subsequent claim that the Equipment was not provided in fully functional order will not be considered by FCPA. If the Equipment fails to perform after the initial acceptance, it will be the responsibility of Customer to contact the FCPA to repair and correct the problem. FCPA will not be responsible for any failure of Equipment that is not reported by Customer within a reasonable time frame and Customer will remain responsible for Fees, unless FCPA decides in its sole discretion and in writing, to waive the Fees for the period of non-performance. FCPA will not be held responsible for any errors or omissions due to the Customer’s lack of operational or technical capability.
6. FCPA’S RIGHT OF INSPECTION. FCPA shall have the right to inspect the Equipment at any time, during Customer's normal business hours.
7. ASSIGNMENT OF SUPPLIER WARRANTIES. To the extent permitted, FCPA hereby assigns to Customer, for the Term, all Equipment warranties provided by any Supplier. Customer shall have the right to take any action it deems appropriate to enforce such warranties provided such enforcement is pursued in Customer’s name and at its expense. In the event Customer is precluded from enforcing any such warranty in its name, FCPA shall, upon Customer’s request, take reasonable steps to enforce such warranty.
8. EQUIPMENT RETURN REQUIREMENTS. At any time Customer is required to return Equipment to FCPA under the terms of this Subscription Agreement, Customer shall (a) wipe clean or permanently delete all data contained on the Equipment, including without limitation, any data contained on internal or external drives, discs, or accompanying media, and (b) pack the Equipment to be returned to FCPA in accordance with the manufacturer’s guidelines and deliver such Equipment to FCPA at any destination within the continental United States designated by FCPA. All dismantling, packaging, transportation, in-transit insurance and shipping charges shall be borne by Customer. All Equipment shall be returned to FCPA in the same condition and working order as when delivered to Customer, reasonable wear and tear excepted, or shall qualify for maintenance service by the Supplier at its then standard rates for Equipment of that age, if available. Customer shall be responsible for, and shall reimburse FCPA promptly on demand for the cost of returning the Equipment to good working condition or, qualifying the Equipment for the Supplier’s maintenance service, if available.
9. EQUIPMENT USE AND ADDITIONS. Customer is solely responsible for the selection, installation, operation and maintenance of the Equipment and all costs related thereto, including shipping charges. Customer shall at all times operate and maintain the Equipment in good working order, repair, condition and appearance, and in accordance with the manufacturer’s specifications and recommendations. Customer shall make no alterations or additions to the Equipment, except those that (a) will not void any warranty made by the Supplier of the Equipment, result in the creation of any security interest, lien or encumbrance on the Equipment or impair the value or use of the Equipment either at the time made or at the end of the Term of the applicable Subscription, and are readily removable without damage to the Equipment (“Optional Additions”), or (b) are required by any applicable law, regulation or order. All additions to the Equipment or repairs made to the Equipment, except Optional Additions, become a part of the Equipment and FCPA’s property at the time made; Optional Additions which have not been removed in the event of the return of the Equipment shall become FCPA’s property upon such return.
10. EQUIPMENT OWNERSHIP; LIENS. As between FCPA and Customer, FCPA is the sole owner of the Equipment and has sole title thereto, Customer shall not make any representation to any third party inconsistent with FCPA’s sole ownership of the Equipment. Customer covenants with respect to each Subscription that: (i) it will not pledge or encumber the Equipment or FCPA’s interest in the Equipment in any manner whatsoever nor create or permit to exist any levy, lien or encumbrance thereof or thereon except those created by or through FCPA; (ii) the Equipment shall remain personal property whether or not affixed to realty and shall not become a fixture or be made to become a part of any real property on which it is placed without FCPA’s prior written consent; and (iii) Customer shall maintain the Equipment so that it does not become essential to and may be removed from any building in which it is placed without any damage to the building or the Equipment.
11. RISK OF LOSS. Customer assumes any and all risk of loss or damage to the Equipment from the time such Equipment is delivered to Customer until such Equipment is returned to and is received by FCPA in accordance with this Subscription Agreement.
12. CASUALTY LOSS. Customer shall notify FCPA of any Casualty Loss or repairable damage to any Equipment as soon as reasonably practicable after the date of any such occurrence but in no event later than 30 days after such occurrence. In the event any Casualty Loss shall occur, on the next Fees payment date Customer shall pay FCPA the Stipulated Loss Value of the Equipment suffering the Casualty Loss. Upon FCPA’s receipt in full of such payment the applicable Subscription shall terminate as it relates to such Equipment and, except as provided in Section 21, Customer shall be relieved of all obligations under the applicable Subscription as it relates to such Equipment. Upon FCPA’s receipt of such payment of Stipulated Loss Value in full, FCPA shall transfer to Customer all of FCPA’s interest in the Equipment suffering the Casualty Loss “AS IS, WHERE IS,” without any warranty, express or implied, from FCPA, other than the absence of any liens or claims by or through FCPA. In the event of any repairable damage to any Equipment, the Subscription shall continue with respect to such Equipment without any abatement of Fees and Customer shall, at its expense, from insurance proceeds or other funds legally available, promptly cause such Equipment to be repaired to the condition it is required to be maintained.
13. TAXES. FCPA shall report and pay all Taxes now or hereafter imposed or assessed by any governmental body, agency or taxing authority upon the purchase, ownership, delivery, installation, leasing, Feesal, use or sale of the Equipment, the Fees or other charges payable hereunder, or otherwise upon or in connection with any Subscription, whether assessed on FCPA or Customer, other than any such Taxes required by law to be reported and paid by Customer. Customer shall promptly reimburse FCPA for all such Taxes paid by FCPA, together with any penalties or interest in connection therewith attributable to Customer’s acts or failure to act, excluding (a) Taxes on or measured by the overall gross or net income or items of tax preference of FCPA, and (b) as to any Subscription the related Equipment, Taxes attributable to the period after the return of such Equipment to FCPA.
14. GENERAL INDEMNITY. Customer, to the extent permitted by law, shall indemnify and hold harmless FCPA and assignees, from and against any and all Claims arising directly or indirectly out of or in connection with any matter involving this Subscription Agreement, the Equipment or any Subscription, including but not limited to the selection, manufacture, purchase, acceptance, rejection, ownership, delivery, Subscription, possession, maintenance, use (including any patent, trademark or copyright infringement), condition, return or operation of any Equipment or the enforcement of FCPA’s rights under any Subscription. Notwithstanding the foregoing, Customer shall have no obligation to indemnify or defend against any Claim arising solely as a result of FCPA’s gross negligence or willful misconduct.
15. DISCLAIMERS AND CUSTOMER WAIVERS. CUSTOMER AGREES THAT IT HAS AN ABSOLUTE AND UNCONDITIONAL OBLIGATION TO PAY ALL FEES AND OTHER AMOUNTS WHEN DUE. CUSTOMER HEREBY WAIVES ANY RECOUPMENT, CROSS-CLAIM, COUNTERCLAIM OR ANY OTHER DEFENSE AT LAW OR IN EQUITY TO ANY FEES OR OTHER AMOUNT DUE WITH RESPECT TO ANY SUBSCRIPTION, WHETHER ANY SUCH DEFENSE ARISES OUT OF THIS SUBSCRIPTION AGREEMENT, ANY CLAIM BY CUSTOMER AGAINST FCPA, FCPA’S ASSIGNEES OR SUPPLIERS OR OTHERWISE. IF THE EQUIPMENT IS NOT PROPERLY INSTALLED, DOES NOT OPERATE OR INTEGRATE AS REPRESENTED OR WARRANTED BY SUPPLIER OR IS UNSATISFACTORY FOR ANY REASON WHATSOEVER, CUSTOMER WILL MAKE ANY CLAIM ON ACCOUNT OF THOSE ISSUES SOLELY AGAINST SUPPLIER AND WILL NEVERTHELESS PAY ALL SUMS DUE WITH RESPECT TO EACH SUBSCRIPTION.CUSTOMER SUBSCRIPTIONS THE EQUIPMENT FROM FCPA “AS IS, WHERE IS”. IT IS SPECIFICALLY UNDERSTOOD AND AGREED THAT (A) EXCEPT AS EXPRESSLY SET FORTH IN SECTION 16, FCPA MAKES ABSOLUTELY NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY, OPERATION, OR CONDITION OF ANY EQUIPMENT (OR ANY PART THEREOF), THE MERCHANTABILITY OR FITNESS OF EQUIPMENT FOR A PARTICULAR PURPOSE, OR ISSUES REGARDING PATENT INFRINGEMENT, TITLE AND THE LIKE; (B) FCPA SHALL NOT BE DEEMED TO HAVE MADE, BE BOUND BY OR LIABLE FOR, ANY REPRESENTATION, WARRANTY OR PROMISE MADE BY THE SUPPLIER OF ANY EQUIPMENT (EVEN IF FCPA IS AFFILIATED WITH SUCH SUPPLIER); (C) FCPA SHALL NOT BE LIABLE FOR ANY FAILURE OF ANY EQUIPMENT OR ANY DELAY IN THE DELIVERY OR INSTALLATION THEREOF; (D) CUSTOMER HAS SELECTED ALL EQUIPMENT WITHOUT FCPA’S ASSISTANCE; AND (E) FCPA IS NOT A MANUFACTURER OF ANY EQUIPMENT. IT IS FURTHER AGREED THAT FCPA SHALL HAVE NO LIABILITY TO CUSTOMER, CUSTOMER’S CUSTOMERS, OR ANY THIRD PARTIES FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS SUBSCRIPTION AGREEMENT OR CONCERNING ANY EQUIPMENT, OR FOR ANY DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY OR FCPA’S NEGLIGENCE; PROVIDED, HOWEVER, THAT NOTHING IN THIS SUBSCRIPTION AGREEMENT SHALL DEPRIVE CUSTOMER OF ANY RIGHTS IT MAY HAVE AGAINST ANY PERSON OTHER THAN FCPA. FCPA AND CUSTOMER AGREE THAT THE SUBSCRIPTIONS SHALL BE GOVERNED BY THE EXPRESS PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND NOT BY THE CONFLICTING PROVISIONS OF ANY OTHERWISE APPLICABLE LAW. ACCORDINGLY, TO THE EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER WAIVES ANY RIGHTS AND REMEDIES CONFERRED UPON A CUSTOMER BY ARTICLE 2A OF THE UCC (INCLUDING, BUT NOT LIMITED TO, CUSTOMER’S RIGHTS, CLAIMS AND DEFENSES UNDER UCC SECTIONS 2A-303 AND 2A-508 THROUGH 2A-522) AND THOSE RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR OTHERWISE, IN EITHER CASE THAT ARE INCONSISTENT WITH OR THAT WOULD LIMIT OR MODIFY FCPA’S RIGHTS SET FORTH IN THIS SUBSCRIPTION AGREEMENT.
16. CUSTOMER WARRANTIES. Customer represents, warrants and covenants to FCPA with respect to each Subscription that: (a) Customer has the power and authority to enter into this Subscription Agreement; (b) this Subscription Agreement is a legal, valid and binding obligation of Customer, enforceable against Customer in accordance with their terms and do not violate or create a default under any instrument or agreement binding on Customer; (c) there are no pending or threatened actions or proceedings before any court or administrative agency that could reasonably be expected to have a material adverse effect on Customer or this Subscription Agreement, unless such actions have been disclosed to FCPA and consented to in writing by FCPA; (d) Customer shall comply in all material respects with all laws and regulations the violation of which could have a material adverse effect upon the Equipment or Customer’s performance of its obligations under this Subscription Agreement; (e) Customer does not export, re-export, or transfer any Equipment, Software, system software or source code or any direct product thereof to a prohibited destination, or to nationals of proscribed countries wherever located, without prior authorization from the United States government and other applicable governments; (f) Customer does not use any Equipment, Software or system software or technology, technical data, or technical assistance related thereto or the products thereof in the design, development, or production of nuclear, missile, chemical, or biological weapons or transfer the same to a prohibited destination, or to nationals of proscribed countries wherever located, without prior authorization from the United States and other applicable governments; and (g) Customer is not an entity designated by the United States government or any other applicable government with which transacting business without the prior consent of such government is prohibited.
17. DEFAULT. Any of the following shall constitute a default by Customer (a “Customer Default”) under this Subscription Agreement and all Subscriptions: (a) Customer fails to pay any Fees payment or any other amount payable to FCPA under this Subscription Agreement within 10 days after its due date; or (b) any change occurs in relation to Customer’s financial condition that, in FCPA’s opinion, would have a material adverse effect on Customer’s ability to perform its obligations under this Subscription Agreement; or (c) Customer becomes insolvent or fails generally to pay its debts as they become due; or (d) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency or receivership law is filed by or against Customer (and if such proceeding is involuntary, it is not dismissed within 60 days after the filing thereof) or Customer takes any action to authorize any of the foregoing matters; or (e) any Equipment is levied against, seized or attached.
18. REMEDIES. If a Customer Default occurs, FCPA may, in its sole discretion, exercise one or more of the following remedies: (a) declare all amounts due and to become due during Customer’s curFees fiscal year under any or all Subscriptions to be immediately due and payable; or (b) terminate this Subscription Agreement or any Subscription; or (c) take possession of, or render unusable, any Equipment wherever the Equipment may be located, without demand or notice and without any court order or other process of law in accordance with Customer’s reasonable security procedures, and no such action shall constitute a termination of any Subscription; or (d) require Customer to deliver the Equipment to a location specified by FCPA; or (e) declare the Stipulated Loss Value for any or all Equipment to be due and payable as liquidated damages for loss of a bargain and not as a penalty and in lieu of any further Fees payments under the applicable Subscription or Subscriptions; or (f) proceed by court action to enforce performance by Customer of any Subscription and/or to recover all damages and expenses incurred by FCPA by reason of any Customer Default; or (g) terminate any other agreement that FCPA may have with Customer; or (h) exercise any other right or remedy available to FCPA at law or in equity. Also, Customer shall pay FCPA (i) all costs and expenses that FCPA may incur to maintain, safeguard or preserve the Equipment, and other expenses incurred by FCPA in enforcing any of the terms, conditions or provisions of this Subscription Agreement (including reasonable legal fees and collection agency costs) and (ii) all costs incurred by FCPA in exercising any of its remedies hereunder (including reasonable legal fees). Upon repossession or surrender of any Equipment, FCPA will Subscription, sell or otherwise dispose of the Equipment in a commercially reasonable manner, with or without notice and at public or private sale, and apply the net proceeds thereof to the amounts owed to FCPA under this Subscription Agreement; provided, however, that Customer will remain liable to FCPA for any deficiency that remains after any sale or Subscription of such Equipment. Any proceeds of any sale or Subscription of such Equipment in excess of the amounts owed to FCPA under this Subscription Agreement will be retained by FCPA. Customer agrees that with respect to any notice of a sale required by law to be given, 10 days' notice will constitute reasonable notice. With respect to any exercise by FCPA of its right to recover and/or dispose of any Equipment securing Customer’s obligations, Customer acknowledges and agrees as follows: (i) FCPA shall have no obligation, subject to the requirements of commercial reasonableness, to clean-up or otherwise prepare the Equipment for disposition, (ii) FCPA may comply with any applicable state or federal law requirements in connection with any disposition of the Equipment, and any actions taken in connection therewith shall not be deemed to have adversely affected the commercial reasonableness of any such disposition, and (iii) FCPA may convey the Equipment on an “AS IS, WHERE IS” basis, and without limiting the generality of the foregoing, may specifically exclude or disclaim any and all warranties, including any warranty of title or the like with respect to the disposition of the Equipment, and no such conveyance or such exclusion or such disclaimer of any warranty shall be deemed to have adversely affected the commercial reasonableness of any such disposition. These remedies are cumulative of every other right or remedy given hereunder or now or hereafter existing at law or in equity or by statute or otherwise, and may be enforced concurFeesly therewith or from time to time.
19. PERFORMANCE OF CUSTOMER’S OBLIGATIONS. If Customer fails to perform any of its obligations hereunder, FCPA may perform any act or make any payment that FCPA deems reasonably necessary for the maintenance and preservation of the Equipment and FCPA’s interests therein; provided, however, that the performance of any act or payment by FCPA shall not be deemed a waiver of, or reSubscription Customer from, the obligation at issue. All sums so paid by FCPA, together with expenses (including legal fees and costs) incurred by FCPA in connection therewith, shall be paid to FCPA by Customer immediately upon demand.
20. ASSIGNMENT. FCPA shall have the unqualified right to sell, assign, grant a security interest in or otherwise convey any part of its interest in this Subscription Agreement, any Subscription or any Equipment, in whole or in part, without prior notice to or the consent of Customer. If any Subscription is sold, assigned, or otherwise conveyed, Customer agrees that FCPA’s purchaser, assignee or transferee, as the case may be (“Assignee”) shall (a) have the same rights, powers and privileges that FCPA has under the applicable Subscription, (b) have the right to receive from Customer all amounts due under the applicable Subscription; and (c) not be required to perform any obligations of FCPA, other than those that are expressly assumed in writing by such Assignee. Customer agrees to execute such acknowledgements to such assignment as may be reasonably requested by FCPA or the Assignee. Customer further agrees that, in any action brought by such Assignee against Customer to enforce FCPA’s rights hereunder, Customer will not assert against such Assignee any set-off, defense or counterclaim that Customer may have against FCPA or any other person. Unless otherwise specified by FCPA and the Assignee, Customer shall continue to pay all amounts due under the applicable Subscription to FCPA; provided, however, that upon notification from FCPA and the Assignee, Customer covenants to pay all amounts due under the applicable Subscription to such Assignee when due and as directed in such notice. Customer may not assign, transfer, sell, pledge or otherwise dispose of this Subscription Agreement, any Subscription, any Equipment or any interest therein, but Customer may subSubscription any Subscription and any Equipment.
21. SURVIVAL. All representations, warranties and covenants made by Customer hereunder shall survive the termination of this Subscription Agreement and shall remain in full force and effect. All of FCPA’s rights, privileges and indemnities under this Subscription Agreement or any Subscription, to the extent they are fairly attributable to events or conditions occurring or existing on or prior to the expiration or termination of such Subscription, shall survive such expiration or termination and be enforceable by FCPA and FCPA’s successors and assigns.
22. AGREEMENT TO ARBITRATE. In the event of a dispute which arises in connection with this Agreement which cannot be settled amicably, the Parties' exclusive remedy will be binding arbitration in Santa Clara County, California by the American Arbitration Association ("AAA") in accordance with its then-curFees Commercial Arbitration Rules before a single arbitrator. In connection with any arbitration, the parties will select an arbitrator with expertise relating to the subject matter herein. In the event the parties are unable to agree upon the person, the AAA will select the arbitrator according to its Commercial Arbitration Rules. Judgment upon any award rendered in such arbitration may be entered in any court having jurisdiction thereof.
23. NOTICES. Service of all notices under this Agreement will be delivered personally or sent by registered mail or courier to Fujitsu Computer Products of America, Inc., Attn: Legal, 1250 E. Arques Avenue, Sunnyvale, CA 94085. Service of all notices under this Agreement will be delivered personally or sent by registered mail or courier to Customer at the address provided to FCPA by Customer at the time of payment of Fees.
(a) Governing Law. Any dispute arising out of or related to these Terms shall be governed by the internal laws of the State of California, without regard to or application of its choice of law rules or conflicts of laws principles. In the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, you agree that any claim or dispute that has arisen or may arise between you and us must be resolved exclusively by a state or federal court located in Santa Clara County, California, and both you and us agree to submit to the personal jurisdiction of the courts located in Santa Clara County, California for the purpose of litigating all such claims or disputes.
(b) Credit Review. Customer consents to a reasonable credit review by FCPA for each Subscription.
(c) Captions and References. The captions contained in this Subscription Agreement are for convenience only and shall not affect the interpretation of this Subscription Agreement or any Subscription. All references in this Subscription Agreement to Sections and Exhibits refer to Sections hereof and Exhibits hereto unless otherwise indicated.
(d) Entire Agreement; Amendments. This Subscription Agreement and the Terms of Sale, executed by both FCPA and Customer shall constitute the entire agreement between FCPA and Customer relating to the leasing of the Equipment, and supersede all prior agreements relating thereto, whether written or oral, and may not be amended or modified except in a writing signed by the parties hereto. Where there may be a conflict between the Subscription Agreement and the Terms of Sale, the Subscription Agreement shall control.
(e) No Waiver. Any failure of FCPA to require strict performance by Customer, or any written waiver by FCPA of any provision hereof, shall not constitute consent or waiver of any other breach of the same or any other provision hereof.
(f) Invalidity. If any provision of this Subscription Agreement shall be prohibited by or invalid under law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Subscription Agreement.
(g) Counterparts. This Subscription Agreement may be executed in counterparts, which collectively shall constitute one document.
(h) FCPA Reliance. FCPA may act in reliance upon any instruction, instrument or signature reasonably believed by FCPA in good faith to be genuine. FCPA may assume that any employee of Customer who executes any document or gives any written notice, request or instruction has the authority to do so.
(i) Force majeure. Neither Party will be liable for damages or have the right to terminate this Agreement for any delay or default in performance if such delay or default is caused by conditions beyond its control including, but not limited to acts of God, government restrictions, wars, insurrections, natural disasters, such as earthquakes, hurricanes or floods and/or any other cause beyond the reasonable control of the Party whose performance is affected.
25. DEFINITIONS. All capitalized terms used in this Subscription Agreement have the meanings set forth below or in the Sections of this Subscription Agreement referred to below:
“Agreement” has the meaning specified in the preamble hereof.
“Assignee” means any assignee of all or any portion of FCPA’s interest in this Subscription Agreement, or any Equipment, whether such assignee received the assignment of such interest from FCPA or a previous assignee of such interest.
“Casualty Loss” means, with respect to any Equipment, the condemnation, taking, loss, destruction, theft or damage beyond repair of such Equipment.
“Casualty Value” means, as to any Equipment an amount equal to the sum of (i) the present value as of the date of the Casualty Loss or Customer Default in question (discounted at 5% per annum, compounded monthly) of all Fees payments payable after such date through the scheduled date of expiration of the Term, plus (ii) the present value as of the date of the Casualty Loss or Customer Default in question (discounted at 5% per annum, compounded monthly, from the scheduled date of expiration of the Term) of an amount determined by multiplying the applicable casualty percentage specified below by the total cost of such Equipment.
“Claims” means all claims, actions, suits, proceedings, costs, expenses (including, without limitation, court costs, witness fees and attorneys’ fees), damages, obligations, judgments, orders, penalties, fines, injuries, liabilities and losses, including, without limitation, actions based on FCPA’s strict liability in tort.
“Customer” has the meaning specified in the preamble hereof.
“Customer Default” has the meaning specified in Section 17.
“End-of-Term Notice” means, as to any Subscription, a written notice delivered by Customer to FCPA at least 30 days prior to the end of the Initial Term, or any Renewal Term setting forth Customer’s elections pursuant to Section 3 with respect to the Equipment.
“Equipment” has the meaning specified in Section 1.
“FCPA” has the meaning specified in the preamble hereof.
“Fees” has the meaning specified in Section 3.
“Hardware” means items of tangible equipment and other property.
“Initial Term” means, as to any Subscription, the initial term.
“Optional Additions” has the meaning specified in Section 9.
“Renewal Term” has the meaning specified in Section 4.
“Site” has the meaning specified in the preamble hereof.
“Software” means copies of computer software programs owned or licensed by FCPA, and any disks, CDs, or other media on which such programs are stored or written.
“Stipulated Loss Value” means, as to any Equipment, an amount equal to the sum of (a) all Fees and other amounts due and owing with respect to such Equipment as of the date of payment of such amount, plus (b) the Casualty Value of such Equipment.
“Subscription” has the meaning specified in the preamble hereof.
“Subscription Agreement” has the meaning specified in the preamble hereof.
“Supplier” means as to any Equipment, the manufacturer or licensor of such Equipment.
“System Software” means an item of Software that is pre-loaded on an item of Hardware.
“Taxes” means all license and registration fees and all taxes (local, state and federal), fees, levies, imposts, duties, assessments, charges and withholding of any nature whatsoever, however designated (including, without limitation, any value added, transfer, sales, use, gross receipts, business, occupation, excise, personal property, real property, stamp or other taxes) other than taxes measured by FCPA’s income.
“Term” means the Initial Term and any Renewal Term(s).
“Terms of Sale” means the terms that apply to all offers, sales and purchases of products from the FCPA Scanner Store and entered by FCPA and Customer.
“UCC” means the Uniform Commercial Code as enacted and in effect in any applicable jurisdiction.