Image Solutions, Inc. hereby sells and conveys to Customer, and Customer purchases from Image Solutions, the personal property (the “Equipment”) described on the Image Solutions Order Agreement (“Order”).
- SECURITY AGREEMENT. Customer and any individual cosigner hereby grant to Image Solutions a purchase money security interest in and to the Equipment. This Agreement or a reprographic copy hereof may be filed with any appropriate agency to protect or perfect Image Solutions’ rights hereunder. By its signature, Customer hereby constitutes any officer or designated employee of Image Solutions as Customer’s attorney-in-fact to execute and file a Uniform Commercial Code financing statement covering the Equipment and reflecting Image Solutions’ interests therein on the public records. Such power of attorney granted hereby is coupled with an interest and is irrevocable.
- WARRANTY. Image Solutions warrants that it has and hereby conveys good title to the Equipment and that the Equipment is free of defects in workmanship and materials appearing within ninety (90) days of the date of installation in the case of new items of Equipment. Image Solutions shall, upon notification of a defect and substantiation that the Equipment was stored, installed, and maintained in accordance with Image Solutions’ recommendations or standard industry practice, correct such defects by suitable repair or replacement at its own expense. The foregoing warranty does not apply to consumable parts such as, but not limited to, drums, fusing units, development units, cleaning brushes, filters, heat and oil tubes, lamps, lenses, and fuses. IMAGE SOLUTIONS MAKES NO FURTHER OR ADDITIONAL WARRANTY, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND CUSTOMER’S REMEDY SET FORTH HEREIN IS THE SOLE AND EXCLUSIVE REMEDY. IN THE CASE OF USED OF RECONDITIONED EQUIPMENT ALL MACHINES ARE SOLD “AS IS”.
- LIMITATION OF LIABILITY. Image Solutions shall not under any circumstances be liable for special, indirect, incidental, or consequential damages, including, without limitation, loss of profits or revenues, loss or damage to other property or equipment, cost of capital, or of purchased or replacement goods, or expense or inconvenience caused by or arising from the purchase, sale, use, or inability to use the Equipment or by any breach of this Agreement.
- DEFAULT. If Customer fails to make payments as agreed, or if Customer becomes insolvent, ceases to do business as a going concern, makes an assignment for the benefit of creditors, or if a petition for a receiver or in bankruptcy or for an arrangement of reorganization is filed by or against Customer, or if any property of Customer is attached, or Customer breaches any of the terms of conditions of this Agreement, the entire unpaid balance shall at once become due and payable, with interest at the highest lawful rate from date of this Agreement, at the election of Image Solutions. Image Solutions may, without notice or demand, by process of law or otherwise, take possession of the goods free from all claims of the Customer and retain all payments made by the Customer for the reasonable use of the goods. The Customer waives all claims and rights of action for trespass or damages by reason of such entry, taking of possession and removal. The remedies provided in this paragraph are in addition to those provided aggrieved sellers under the Uniform Commercial Code.
- EXCUSED PERFORMANCE. Image Solutions shall not be liable nor deemed to be in default on account of any failure to perform hereunder if due to any cause or condition beyond Image Solutions’ reasonable control. You understand that this order agreement, as well as any lease agreement executed, is separate from the service agreement and is in no way subject to any, refund or set-offs, even is the equipment does not work properly or is damaged for any reason, including reasons that are not your fault.
- ATTORNEY’S FEES. In the event that Image Solutions finds it necessary to enforce any right under this Agreement, Image Solutions shall be entitled to reasonable attorneys’ fees and court costs.
- INTEGRATION. This agreement, consisting of the signed Order Agreement, Terms and Conditions constitutes the sole and complete agreement between Image Solutions and the Customer with respect to the sale of the Equipment.
- DELINQUENT PAYMENTS. (a) Service Charge. Since it would be difficult or impossible to determine Image Solutions’ actual damages in the event of late Payment, if any Payment to Image Solutions is not paid within 10 days of the date it is due, Customer shall pay to Image Solutions an amount equal to 10% of any such late Payment to compensate Image Solutions for its expense occasioned by such late payment. Image Solutions and Customer agree and acknowledge that such service charge shall not constitute a penalty. (b) Interest. Customer shall also pay Image Solutions interest on such late Payment at the highest rate permitted by applicable law, but not more than 5% per month. (c) Collection Costs. Customer shall pay to Image Solutions all costs of collection (including the fees of any collection agency to whom this Agreement may be referred) plus reasonable attorney’s fees (which attorney’s fees shall not be less than 25% of amounts due unless a lower amount is specified by applicable law.)
- IMAGE SOLUTIONS ACCEPTANCE. This Order Agreement is an irrevocable offer to purchase and subject to approval by Image Solutions at Image Solutions’ Home Office in Asheville, North Carolina. Written communication indicating such acceptance will be mailed to Customer by Image Solutions. In the event this Agreement is not accepted by Image Solutions, any funds deposited by Customer shall be refunded and Customer will immediately surrender any Equipment which has been delivered. In no event shall the deposit by Image Solutions of checks or other instruments tendered by Customer in connection herewith constitute acceptance of this Agreement.
- TAXES. Customer shall pay to Image Solutions as an additional charge any amounts paid by Image Solutions for (or pay directly if so instructed by Image Solutions) all charges and taxes (local, state, and federal) which may now or hereafter be imposed or levied upon the sale, purchase, ownership, rental, leasing, possession or use of Equipment, except those on or measured by Image Solutions’ net income.
- INTELLECTUAL PROPERTY. To the extent that there is any software or documentation being sold, leased or rented pursuant to this Sales Order, Image Solutions hereby grants to Customer a non-exclusive and non-transferable license to use such software or documentation solely in connection with Customer’s use of the Equipment. In the event that Image Solutions and Customer enter into a separate license agreement with respect to such software or documentation, the terms of that license shall govern and take priority over the terms of this Section 3. SOFTWARE, DOCUMENTATION AND MEDIA CONTAINING SOFTWARE OR DOCUMENTATION ARE DELIVERED TO CUSTOMER “AS IS”. Customer acknowledges and agrees that all software and documentation are and shall remain the property of Image Solutions, constitute trade secrets of Image Solutions and are otherwise confidential. This Agreement and any subsequent transfer of title in the Equipment to Customer or from Customer to third parties shall not operate to transfer any right, title or interest in or to said software or documentation and Customer agrees that it shall not permit third parties to copy, disclose or recreate said software or documentation.
- NOTICE. Service of all notices required or permitted under this Agreement shall be sufficient if given, personally delivered or mailed, to the party involved at its address set forth on he Order Agreement, or at such other address as the parties may provide in writing from time to time. Any such notice shall be effective when deposited in the United States mail, duly and properly addressed, certified mail, and with postage prepaid.
- ARBITRATION. Any controversy or claim arising out of or relating to this Agreement or the breach hereof, including any claim based upon or arising from an alleged tort, shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association in effect on the date of this Agreement, and judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any remedy that would be available from a court of law or equity shall be available from the arbitrator(s). The arbitration hearing and all proceedings in connection therewith shall take place in Asheville, North Carolina. The arbitration hearing shall be commenced within (90) days of the filing of a Demand for Arbitration by either party, and the award shall be rendered within thirty (30) days of the conclusion of such hearing.
- MISCELLANEOUS. This Agreement constitutes the entire agreement between Image Solutions and Customer and this Agreement shall not be amended, altered or changed except by a written agreement signed by the parties. In the event Customer issues a purchase order to Image Solutions covering the Equipment it is agreed that such purchase order is issued for purposes of authorization and internal use and none of its terms and conditions shall modify the terms and conditions of this Agreement and/or related documentation. Customer shall provide Image Solutions with such corporate resolutions opinions of counsel, financial statements, and other documents, (including UCC Financing Statements and other documents for filing or recording) as Image Solutions shall request from time to time. If more than one customer shall execute this Agreement, the liability of each shall be joint and several. Time is of the essence of this Agreement. No provision of this Agreement which may be deemed unenforceable shall in any way invalidate any other provision hereof. Customer represents that the Equipment will be used only for business purposes and agrees that under no circumstances shall this Agreement be construed as a consumer contract. Image Solutions may suspend performance under this Agreement or any maintenance agreement if Customer is in default or in arrears to Image Solutions under this or any other agreement. Any controversy or claim arising out of or relating to this Agreement, the formation of this Agreement, or the breach of this Agreement, including any claim based upon or arising from an alleged tort, shall be governed by the substantive laws of the State of North Carolina, except that all arbitration and related proceedings conducted pursuant to this Agreement, including without limitation confirmation proceedings, shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1 et seq.
This Agreement or a reprographic copy hereof may be filed with any appropriate agency to protect or perfect Image Solutions’ rights hereunder. By its signature, Customer hereby constitutes any officer or designated employee of Image Solutions as Customer’s attorney-in-fact to execute and file a Uniform Commercial Code financing statement covering the Equipment and reflecting Image Solutions’ interests therein on the public records. Such power of attorney granted hereby is coupled with an interest and is irrevocable.
IMAGE SOLUTIONS SALES AND SERVICE REPRESENTATIVES ARE NOT AUTHORIZED TO WAIVE OR ALTER THE TERMS OF THIS AGREEMENT AND THEIR REPRESENTATIONS SHALL IN NO WAY ALTER THE RIGHTS AND OBLIGATIONS OF CUSTOMER OR IMAGE SOLUTIONS AS SET FORTH HEREIN
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