Terms & Conditions of Equipment Rental
This Schedule of Terms & Conditions of On Premise Rental and Security Agreement (sometimes, this “Schedule”) are incorporated into the ITC Sales Order Form, between Client and ITC, Inc. (“ITC”, “we” or “us”).
This Schedule is subject to all of the terms and conditions of the Sales Order and all of the Schedules that are incorporated by reference into the Sales Order (taken together, the “Agreement”). Capitalized terms used in this Schedule but not otherwise defined have their respective meanings in the Agreement. In the event of any conflict between this Schedule and the Agreement, the terms of this Schedule will govern.
TERMS AND CONDITIONS OF ON PREMISE EQUIPMENT RENTAL AND SECURITY AGREEMENT
These terms and conditions (these “Terms”) are for the rental of certain hardware, equipment and other products of ITC that are identified in the ITC Sales Order Form (the “Sales Order”) as owned by ITC and rented to Client (the “Equipment”), which are to be maintained on Client’s premises. These Terms are the exclusive terms and conditions upon which ITC provides on premise rentals of Equipment. ITC will not accept any other terms and conditions for any rental of any Equipment, unless Client and an authorized officer of ITC have executed a written agreement that specifically modifies, supersedes and replaces these Terms in whole or in part as expressly set forth in such written agreement. Acceptance of Equipment rented to Client by ITC is expressly made conditional upon the Client’s assent, express or implied, to these Terms without any modification, unless expressly set forth in such written agreement.
NOTE: CLIENT GRANTS ITC THE AUTHORITY TO FILE THIS SCHEDULE AS A FINANCING STATEMENT UNDER THE UNIFORM COMMERCIAL CODE WITH RESPECT TO ALL SECURITY INTERESTS CREATED UNDER THIS SCHEDULE.
1. UNDERSTANDINGS AND BASIC TERMS
Client and ITC agree to all of the following understandings and terms of this Schedule:
- Client has agreed to purchase Services and to license Software from ITC under the Agreement;
- Client has agreed to rent the Equipment from ITC in conjunction with purchasing the Services and licensing the Software;
- Client acknowledges that ITC is the sole owner of the Equipment;
- ITC has agreed to provide the Equipment to Client in consideration of Client’s payment of the rental fees that are included as part of the total fees set forth in the Sales Order and charged under the Agreement, on the terms and subject to the conditions set forth in this Schedule and the Agreement; and
- Client agrees to pay the fees set forth in the Sales Order, which include the fees for the rental of the Equipment (collectively, the “Rental Fees”), to ITC in accordance with the terms of the Agreement.
ITC will furnish to Client, and Client will accept and pay the aggregate Rental Fees for the Equipment identified in the Sales Order.
3. DELIVERY, INSPECTION AND INSTALLATION
We will arrange for delivery of the Equipment. We will arrange for and bill Client for transportation. Risk of loss passes to Client at Client’s loading dock when we deliver the Equipment to Client. Client agrees to make any modifications required to allow Client’s facility to receive the Equipment. Client shall prepare and continue to maintain the installation site in accordance with all applicable ITC specifications. The date upon which we complete the installation of all Equipment that Client has readied its site to receive shall be the “Installation Date”, even though some Equipment may not have been installed because Client’s site was not prepared in accordance with ITC specifications. Client shall inspect the Equipment and notify ITC in writing of any defect or nonconformity no more than 5 days after delivery to Client. Client agrees that it shall be conclusively presumed that Client has fully inspected and accepted the Equipment in good condition and repair at the end of the 5-day period (which shall be deemed to be the Installation Date, if Client and ITC do not agree in writing to another Installation Date).
4. REFUSAL TO ACCEPT
If Client refuses to permit delivery or installation or to accept all or any part of the Equipment, ITC is entitled to receive (a) any Equipment in Client’s possession and (b) all damages associated with such complete or partial refusal or delay in acceptance, including but not limited to lost profits.
5. RENTAL FEES AND OTHER PAYMENTS
. Client shall pay ITC the Rental Fees in accordance with the Agreement. Client shall pay all Rental Fees to ITC at the address shown above, or such other place as ITC may designate in writing. All rent shall be paid without notice or demand. Client’s obligation to pay rent is absolute and unconditional. Client shall not be entitled to any abatement of rent, reduction or setoff. This Schedule shall not terminate, and Client’s obligations shall not be affected by, any defect in, lack of fitness for use of, damage to, loss of possession or use of or destruction of, all or any of the Equipment, the prohibition of or other restriction against Client’s use of the Equipment, or for any other cause. Client and ITC both intend that the Rental Fees and other amounts payable by Client under this Schedule (collectively, the “Obligations”) shall continue to be payable in all events in the manner and at the times provided, and that the rental agreement created by this Schedule is an irrevocable net lease for the full rental term. Unless otherwise specifically provided in this Schedule, Client may not prepay rent under this Schedule except by paying the full amount of the aggregate remaining Rental Fees. Client shall pay any and all other charges no later than the due date. ITC may impose a late payment charge equal to the product of the balance due multiplied by the lesser of 1.5% per month or the maximum rate allowed by law, if Client does not. Client shall reimburse ITC for any and all costs of collection and legal fees paid or incurred, and disbursements incurred by ITC in enforcement of or protection of any of its rights under this Schedule. All such amounts shall be added to the Rental Fees.
Client shall pay promptly when due all registration, title, license and other fees, and all other fees, assessments and sales, use, gross receipts, ad valorem, personal property and other taxes imposed upon the purchase or any use, ownership, rental, shipment, delivery or operation of the Equipment (and reimburse ITC for any fee or tax ITC becomes obligated to pay because of our duties under this Schedule (including sales and excise taxes), but not taxes based on our net income), and any fines, penalties and interest thereon.
7. CLIENT’S OPERATIONAL RESPONSIBILITIES
Client acknowledges that:
- 7.1 Client has independently determined that the Equipment ordered under this Schedule meets Client’s requirements.
- 7.2 Client shall ensure that Client’s personnel, employees, and any other persons authorized to use the Equipment (collectively, “Users”) are always educated and trained in the proper use, operation and care of the Equipment, and that the Equipment is always used in accordance with applicable ITC manuals and instructions.
- 7.3 Client shall provide adequate warnings when necessary or desirable to prevent harm to people (including death) or property.
If we fail to meet any of the Service Goals listed in Section 6.1 or 6.2 above, Client shall be eligible for a credit as Client’s sole and exclusive remedy for such failure. Credits will be calculated as a percentage of the fees for the Services for the current monthly billing period in which the failure occurred (to be applied at the end of the billing cycle). If we fail to achieve a Service Goal in a calendar month due to any cause other than a Service Goal Exclusion described in Section 6.4 below, then Client shall receive a credit in the amount set forth in the table below, up to a maximum of the fees Client has paid for the current month to us for one month’s Services.
- 7.4 Except as otherwise specifically set forth in the Agreement: ITC will not be responsible for retaining any of Client’s data after termination of Services; Client’s data may be deleted promptly after Client’s Service is terminated and from backups during scheduled backup rotation; ITC will not restore, provide on any storage media or send out any data pertaining to terminated Services; and it is Client’s responsibility to back-up and migrate Client’s data before termination of Client’s Service or any other action that can lead to deletion of any of Client’s data from the Services or Equipment.
8. WARRANTIES AND DISCLAIMERS
Read the following disclaimers carefully. They apply to (a) any Equipment listed on the Sales Order that is not designated as ITC equipment or Equipment (“Non ITC Equipment”), (b) any software listed on the Sales Order or a schedule that is not designated as ITC Software (“Non ITC Software”), (c) ITC Equipment, and (d) ITC software.
Except as expressly stated herein, ITC makes no warranties, express or implied, by operation of law or otherwise. Without limiting the foregoing sentence, ITC disclaims the implied warranties of merchantability and fitness for a particular purpose.
ITC warranties extend solely to Client.
ITC does not make any warranties of any kind that the Equipment or its components do not or will not infringe any copyright, patent, trade secret or other intellectual property right of any third party in any country.
- 8.1 All warranties are null and void if the Equipment is (a) altered, including installation of or interfacing computer programs that are not ITC Software as described in this Schedule or the Sales Order, (b) subjected to out of specification uses or accidents, (c) misused, (d) damaged by Client’s or any User’s negligence, or Client’s or any User’s failure to follow instructions or specifications as to proper use, care, maintenance or cleaning of Equipment, (e) damaged by external factors such as fluctuation of electrical power, temperatures above 80 degrees Fahrenheit, fire, flood or failure or Client’s refusal to comply with ITC environmental specifications, or (f) subjected to improper site preparation or maintenance.
- 8.2 ITC shall have no responsibility for the effect that the installation of any software may have on any warranties relating to the Equipment.
- 8.3 ITC warrants that the Equipment will be free from defects in material and workmanship for the longer of the term of the Rental (including any extended term), or for a period of one (1) year from the Installation Date. During this warranty period, ITC shall repair or replace any defective Equipment, if Client promptly reports the defect in accordance with the terms of the Agreement. Because Equipment require ongoing maintenance, the preceding warranty is not a substitute for periodic replacement parts and any alterations necessary to keep the Equipment in good working order. ITC makes no representation or warranty as to Non ITC Equipment provided to Client, all of which is leased or licensed to Client “AS IS”. Client agrees to look solely to the warranties and remedies, if any, provided by the manufacturers of such Non ITC Equipment.
- 8.4 All ITC Software delivered by ITC that is not listed on the Sales Order, and all Non ITC Software, is licensed “AS IS”. In the case of Non ITC Software, Client agrees to look solely to the warranties and remedies, if any, provided by the licensor of the Software.
9. ALTERATIONS AND ATTACHMENTS; INDEMNITY
Client shall not make or allow to be made any alterations or attachments to the Equipment. ITC is not responsible for any malfunction, nonperformance or degradation of performance of Equipment, supplies or maintenance support materials caused by or resulting directly or indirectly from any maintenance, repairs, alteration, modification or attachment that was not made by ITC. ITC warranties will not apply if any maintenance, repairs, attachment or equipment not supplied by ITC or alteration of Equipment occurs or is allowed by Client to occur. Client will be solely responsible for any infringement, personal injury, death or damage to property and Equipment resulting from such maintenance, repair, alteration, modification or attachment. Client shall defend, indemnify and hold harmless ITC and its officers, directors, employees and agents, from and against any and all liabilities, claims, costs, losses and expenses (including reasonable attorneys’ fees), paid or incurred as a result of or arising from Client’s or any User’s alteration, misuse or modification of the Equipment or violation of this Schedule.
10. LIMITATIONS OF DAMAGES
10.1 No Consequential Damages
Neither party shall be liable to the other party for any lost profits, or any indirect, special, incidental, or consequential loss or damage of any kind, arising in connection with this schedule, even if the party has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages.
10.2 Monetary Limitation
Notwithstanding anything in this Schedule to the contrary, ITC’s maximum aggregate monetary liability under any theory of law (including breach of contract, tort, strict liability and infringement) shall not exceed 4 times one month’s Rental Fees in effect at the time of the occurrence of the event giving rise to the claim.
10.3 Except as otherwise provided in the Agreement:
The entire liability of ITC and Client’s exclusive remedy for any defective Equipment provided under this Schedule is limited to ITC’s replacement of fully replicated ITC Equipment or for refund of the portion of the Rental Fees paid to ITC for such Equipment (not including any amounts paid for related Services), at ITC’s option.
Client acknowledges that the limitations contained herein permit ITC to provide Equipment at lower rates than ITC otherwise could, and such limitations are reasonable.
10.5 These limitations of damages are intended to limit ITC’s exposure for damages.
ITC shall not be liable to Client for any reason other than as expressly set forth herein. Regardless of whether any remedy fails of its essential purpose, ITC shall not be liable to Client or any third party for any consequential, indirect, incidental or special damages, even if ITC has been advised of the possibility of such damages. ITC’s total liability for all causes of action added together may not exceed the amount described in Section 10.2 with respect to all Equipment and all claims made under this Schedule that result in ITC’s liability.
11. RISK OF LOSS
Client shall bear all risks of loss, theft, damage or destruction of the Equipment from any cause. Client shall promptly notify ITC in writing of any such loss, theft, damage or destruction of the Equipment. Except as otherwise provided in the Agreement, if damage of any kind to the Equipment occurs (unless the damage is beyond repair) Client shall, at Client’s expense, place the Equipment in good repair, condition and working order. If ITC determines that Equipment is lost, stolen, destroyed or damaged beyond repair and Client is not entitled to repair or replacement by ITC under the terms of the Agreement, then Client shall immediately pay in addition to unpaid late charges, and additional rent, an amount equal to (i) all unpaid Rental Fees attributable to the rental of the Equipment that are due and to become due under this Schedule, plus (ii) the estimated residual value at the end of the scheduled Rental term, discounted to present value at the rate of 6% per annum, less the net amount of the recovery, if any, we actually receive from insurance on the Equipment. Upon such payment, the Rental under this Schedule shall terminate.
Client shall, at Client’s sole expense, procure and maintain throughout the Rental term (a) primary (i.e., without right of contribution from any other policy) person injury liability and property damage liability insurance with respect to the Equipment and its use, in such amounts as may be acceptable to us, and naming ITC as additional insured, and (b) insurance insuring the Equipment against all risks of physical loss, theft, damage and destruction and extended coverage in an amount equal to the greater of (i) the total rent (or remaining total rent) for the full term (or remaining term) of this Schedule, or (ii) the full replacement value (new) of the Equipment, with loss payable solely to ITC. All insurers and coverages must be satisfactory to us. Client shall deliver us policies or duplicates of certificates of such insurance (or other evidence of such insurance acceptable to us). Policies shall provide that they may not be canceled or altered without at least 30 days’ prior written notice to us. We may apply the proceeds of insurance to replace or repair the Equipment and/or satisfy any of Client’s obligations under this Schedule. If Client fail to procure such insurance or pay any insurance premium when due, we may (but shall not be required to) procure such insurance or make such premium payments, and Client shall pay us the costs thereof as additional rent with Client’s next payment of Rental Fees. All insurance policies insuring against risk or physical loss of the Equipment shall provide that the coverages shall not be invalidated against ITC because of any violation of any condition or warranty contained in any policy or application therefor by Client or by reason of any action or inaction of ITC.
13. USE OF EQUIPMENT
Client shall use the Equipment solely for business or commercial purposes. Client warrants that the Equipment shall at all times be used and operated in compliance with manufacturer’s instructions and under and in compliance with the laws of the jurisdictions in which such Equipment may be operated. Any alterations, modifications, additions or improvements, and all repairs, parts and supplies shall be the property of ITC and shall be subject to the terms of this Schedule.
14. SECURITY AGREEMENT; SECURITY INTEREST
Client grants ITC a security interest in the Equipment and all other items of property in which ITC has any interest under this Schedule or the Agreement, wherever located, now or hereafter, and all proceeds of the foregoing, which shall secure the performance of all of Client’s obligations of any kind whatsoever to ITC.
Title to the Equipment throughout the Rental term shall at all times be in ITC. Client shall protect and defend, at Client’s own cost and expense, our title from and against all claims, liens and legal processes of creditors of or arising under, by, or through Client and keep all Equipment free and clear of all such claims, liens and processes.
- 15.1 Client shall not assign or transfer the Rental, this Schedule or Client’s rights under this Schedule or sublease the Equipment, or remove or permit any Equipment or any parts thereof to be removed from the location specified above as Client’s address (or the Equipment location, if another location has been specifically permitted under the terms of this Schedule) or permit the Equipment to be used by anyone other than Client’s employees or Client’s Users. Client shall keep ITC’s interest in the Equipment and each unit of Equipment free and clear of any and all liens, charges, encumbrances, rights of distraint, charges, and claims of the owner of the real estate in which such Equipment is installed and of any purchaser or present or future creditor obtaining a lien on such real estate. At ITC’s request, Client will obtain and deliver a waiver of any interest of Client’s landlord and mortgagees of such real estate in the Equipment in a recordable form supplied by ITC.
- 15.2 The Equipment shall be and remain personal property regardless of the manner in which they may be attached or affixed to real estate. Upon termination of the term of the Rental, Client shall have the duty and ITC shall have the right to remove each Equipment from its location, at Client’s sole cost and expense, unless the Agreement provides otherwise. ITC shall not be liable for any damage caused to the real estate or any building by the removal of the Equipment, and Client hereby indemnifies ITC against any damage.
- 15.3 Client shall at ITC’s request securely affix conspicuous tags or plates on the Equipment containing a notation that each unit of Equipment is owned by ITC. Client agrees from time to time to execute and file any financing statements, security schedules, and similar instruments, that in ITC’ judgment are necessary to protect ITC. Client authorizes ITC and its assignees to file one or more financing statements with respect to the Equipment and/or additional collateral without Client’s signature. Client appoints ITC as Client’s attorney-in-fact to execute financing statements on Client’s behalf when required by the filing jurisdiction, and to file a carbon, photographic or other reproduction of this Schedule or a financing statement.
- 15.4 ITC may from time to time during reasonable business hours enter upon Client’s premises or elsewhere for the purpose of confirming the existence, condition and proper maintenance of the Equipment.
16. RETURN OF EQUIPMENT
Upon the expiration or termination of the Rental, Client shall return the Equipment to us in good order and repair, ordinary wear and tear excepted, free and clear of all liens other than those created by us. Client shall provide access to ITC for ITC’s removal of the Equipment. Client shall properly prepare the premises for removal of the Equipment, at Client’s expense. If, within 10 days after the expiration of the Rental term, Client fails to provide such access as provided above, we may at our sole option (x) extend the Rental term, or (y) declare an Event of Default under Section 17 and pursue our remedies under this Schedule. All provisions applicable to the initial Rental term shall apply to the extended Rental term, except as provided in the following sentence. If the Rental term is extended for a 3-year extended term, upon the expiration or termination of the extended Rental, if Client have not returned the Equipment to ITC in accordance with the terms of this Section 16, then the Rental term shall continue on a month-to-month basis until Client returns the Equipment, or ITC in its sole discretion terminates the Rental. If we do not exercise our option to extend the term following Client’s failure to timely return the Equipment, Client shall pay us the renewal rent for the Equipment, monthly, from the Rental expiration date through the month in which the Equipment is returned.
The occurrence of any one of the following shall constitute an Event of Default under this Schedule, which shall also be a default under the Agreement: (a) Client fails to pay any installment of Rental Fees or other amount due hereunder on or before its due date, or fails to provide access to ITC to recover the Equipment in accordance with Section 16 the Equipment as required by Section 16, as time is of the essence with respect to any payment due hereunder; (b) Client removes, sells, transfers, encumbers, sublets or parts with possession of any Equipment or if Client attempts to do any of the foregoing; (c) Client fails to maintain in force the required insurance on the Equipment in compliance with Section 12 or fails to provide loss payable protection to us in a form satisfactory to us; (d) Client fails to observe or perform any of the other obligations Client is required to observe or perform under this Schedule or in any other Schedule now or hereafter executed between Client and ITC, and such failure continues uncured for 10 days after written notice to Client by ITC; (e) Client ceases doing business as a going concern, makes an assignment for the benefit of creditors, admits in writing Client’s inability to pay Client’s debts as they become due, files a voluntary petition in bankruptcy, is adjudicated a bankrupt or an insolvent, files a petition seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar arrangement under any present or future statute, law or regulation, or files an answer admitting the material allegations of a petition filed against Client in any such proceeding; Client consents to or acquiesces in the appointment of a trustee, custodian, receiver or liquidator of Client or any substantial part of Client’s assets or properties; or if Client or Client’s shareholders take any action looking to Client’s dissolution or liquidation; or an order for relief is entered under the Bankruptcy Code against Client; or (f) if within 30 days after any proceedings are commenced against Client seeking reorganization, arrangement, readjustment, liquidation, dissolution or similar relief under any present or future statute, law or regulation, such proceedings shall not have been dismissed, or if within 30 days after the appointment with Client’s consent or acquiescence of any trustee, custodian, receiver or liquidator of Client or of all or any substantial part of Client’s assets and properties, such appointment is not vacated. It shall be an Event of Default under this Schedule, if any payment is not made in a timely manner, without any right to cure, unless such right to cure is granted by ITC in any particular instance in ITC’s sole discretion. If an Event of Default occurs, ITC shall be entitled to exercise all remedies, including but not limited to those listed in those listed in Section 18 of this Schedule and those contained in the MMS Agreement.
18. REMEDIES FOLLOWING DEFAULT
Upon the occurrence of any Event of Default, ITC may at our option do any of the following: (i) terminate the Rental under this Schedule; (ii) whether or not the Rental is terminated, take possession of any or all of the Equipment, and for such purpose, enter upon any premises without liability for so doing, or cause Client to, and Client hereby agrees to, return the Equipment to ITC as provided in this Schedule; (iii) sell, dispose of, hold, use or lease any Equipment as ITC, in our sole discretion, may determine; (iv) recover from Client, as liquidated damages for loss of a bargain and not as a penalty, a sum equal to the aggregate of the following: (a) all Rental Fees and other sums due under this Schedule through the date of the Event of Default, (b) any expenses paid or incurred by ITC in connection with the repossession, holding, repair and subsequent sale, lease or other disposition of the Equipment, including attorneys’ fees and legal expenses, (c) the present value (using a 6% percent per annum discount rate) of all amounts Client is required to pay during the remaining Rental term, (d) the present value (using a 6% percent per annum rate) of the estimated residual value at the end of the scheduled Rental term, and (e) interest on the aggregate amounts specified in (a) through (d) above from the date of the Event of Default (or expenditure) at a rate equal to 1.5% per month or such lesser maximum rate as is allowed by law. Client shall in any event remain fully liable for damages as provided by law and for all costs and expenses incurred by ITC on account of such default, including but not limited to all court costs and reasonable attorneys’ fees. Client shall remain liable for any deficiency after any sale, rental, or other disposition of the Equipment by ITC. Any right afforded ITC shall not be deemed to be exclusive, but shall be in addition to any rights and remedies provided by law. If any court of competent jurisdiction determines that any provision of this Section 18 is invalid or unenforceable in whole or in part, such determination shall not prohibit ITC from enforcing its rights and establishing its damages sustained as a result of any breach of this Schedule in any action or proceeding in which ITC seeks to enforce its rights and recover such damages, in accordance with the laws of such jurisdiction. Without prejudice to other remedies, ITC may cancel this Schedule or part thereof or any order placed under it and repossess Equipment and/or disable Client’s use of Software and/or Equipment if Client defaults and, after written notice, fails to (a) make any payment identified as delinquent (including payment of charges for Services) within 10 days, or (b) cure any default relating to Section 7 within 30 days. Termination or cancellation of this Schedule will not affect any rights or duties arising with respect to Proprietary Information.
19. OTHER CHATTEL PAPER
. As additional collateral security for Client’s obligations, Client grants ITC a further security interest in all machinery, equipment and goods covered by any other lease or security agreement (collectively, the “other Agreements”) between Client and ITC as security for Client’s obligations under this Schedule, and all of Client’s rights, title and interest in and to any surplus money to which Client may be entitled upon the sale of machinery, equipment and goods covered by such other Agreements. The benefit of this additional security provision shall apply to us and our assignees to the extent that we or such assignees are also the holder of any such other Schedules.
ITC may assign or otherwise transfer the Rental and/or this Schedule and any and all of ITC’s right, title and interest under this Schedule and in the Equipment, including the right to receive Rental Fees and all other amounts payable hereunder, without Client’s consent. If ITC assigns the Rental or this Schedule, the assignee’s right to receive rentals and other amounts payable hereunder, as well as any other right of the assignee, shall not be subject to any defense, set-off or counterclaim Client may have against ITC. Upon ITC’s giving notice to Client of any such assignment, Client shall promptly acknowledge Client’s obligations to the assignee and shall comply with the written directions or demands of such assignee. Thereafter, Client shall make all rental and other payments due under this Schedule as such assignee may direct in writing. Following any such assignment, the terms “ITC,” “we,” and “us,” shall be deemed to include or refer to ITC’s assignee, but no such assignee shall be deemed to assume any obligation or duty imposed upon ITC. Client shall look only to ITC for performance of our duties under this Schedule. As used in this Section 20: the term “assign” includes a pledge, sale of, or grant of a mortgage on, or a security interest in, any of the Equipment or the Rental or this Schedule by ITC; and the term “assignee” refers to the recipient of such pledge, hypothecation, sale, mortgage or security interest. Client may not assign this Schedule or transfer Client interest in this Schedule without ITC’ express, prior written consent. Any such purported assignment by Client other than in compliance with the provisions of this Section 20 shall be null and void ab initio.
21. RENTAL, IRREVOCABILITY
Upon acceptance of Equipment under the Exhibit A and the Sales Order, this Schedule shall constitute a non-cancelable net lease covering the Equipment listed in the Sales Order. Client’s obligations to pay all Rental Fees and other amounts when due and to perform as required under this Schedule are unconditional and irrevocable. Delinquent installments of Rental Fees and other sums due under this Schedule shall bear interest at the rate of 1.5% per month (computed on the basis of a 30-day month), if not prohibited by law, otherwise at the highest rate lawfully payable by Client. Such obligations are not subject to cancellation, termination, prepayment, modification, repudiation, revocation or excuse. Client shall not be entitled to any abatement, reduction, offset or counterclaim with respect to these obligations for any reason whatsoever, whether arising out of claims against ITC, the manufacturer or supplier, defect in, lack of fitness for use of, loss of possession or use of or damage or destruction of any Equipment, any prohibition against use or otherwise.
22. SECURITY DEPOSIT
ITC may, at its option, require a security deposit (“Security Deposit”) and apply the Security Deposit to cure any of Client’s defaults under this Schedule, whereupon Client shall promptly restore such Security Deposit to its original amount. ITC shall return to Client any unapplied Security Deposit without interest upon full payment and performance of Client’s obligations under this Schedule.
All notices required by this Schedule to be given to Client will be sent to Client’s address on the Sales Order or to such other address as Client shall designate in writing to ITC. All notices required to be given to ITC and all requests for information under Section 8 will be addressed to ITC at the address provided in the Sales Order, or to such other address as ITC shall from time to time designate, and shall be sent by U.S. registered mail, postage and registry fees prepaid.
24. TIME IS OF THE ESSENCE
Time is of the essence with respect to any payment due hereunder. It shall be an Event of Default (defined in Section 17) under this Schedule, which shall also be a default under the Agreement, if any payment is not made in a timely manner, without any right to cure, unless such right to cure is granted by ITC in any particular instance in ITC’s sole discretion. If an Event of Default occurs, ITC shall be entitled to exercise all default remedies, including but not limited to those listed in the Schedule and those listed in Section 18 of this Schedule.