These Terms and Conditions apply to any loaned equipment ("Loaned Equipment") loaned by Ivoclar Vivadent, Inc. with a business address of 175 Pineview Drive, Amherst, NY 14228 ("Lessor"), to a party accepting the Loaned Equipment ("Lessee"). Lessor and Lessee together are the "Parties", and each, a "Party".
1. Loaned Equipment. Loaned Equipment is loaned by Lessor to Lessee under these Terms and Conditions, and Lessee hereby accepts the Equipment according to these Terms and Conditions and all other terms as communicated by Lessor at the time Lessee agrees to accept the Loaned Equipment, or at the time of shipping the Loaned Equipment to Lessee. Lessor shall deliver to Lessee the Loaned Equipment as a loaner by Lessee to its customers ("Customers"). Lessor shall deliver the Loaned Equipment to Lessee's facility as communicated to Lessor by Lessee (the "Facility").
2. Consignment Requests and Consignment Confirmations. Following receipt of a Loaned Equipment Request submitted by Lessee from time to time pursuant to these Terms and Conditions, Lessor shall issue to Lessee a confirmation ("Equipment Confirmation") which shall be subject to these Term and Conditions, and other terms as set forth specifically at the time Lessee agrees to accept the Loaned Equipment.
3. Terms Prevail Over Lessee's Consignment Request. These Terms and Conditions as presented by Lessor prevail over any terms or conditions of Lessee contained in any other documentation and expressly exclude any of Lessee's general terms and conditions contained in any consignment request, purchase order, or other document issued by Lessee (collectively, "Consignment Request"), regardless of whether or when Lessee has submitted its Consignment Request or such terms. Fulfillment of Lessee's Consignment Request does not constitute acceptance of any of Lessee's terms and conditions and does not serve to modify or amend any Equipment Confirmation or these Terms and Conditions. In the event of any conflict between these Terms and Conditions and the terms of any Lessee or a Consignment Request, these Terms and Conditions shall prevail.
4. Storage of Loaned Equipment at the Facility; Inspection by Lessor.
4.1 Lessee shall store all Loaned Equipment in the Facility in such a manner as to protect them from damage or deterioration. Lessee shall store the Loaned Equipment in areas of the Facility that will allow the Loaned Equipment to be protected from damage or theft and shall clearly identify them as the property of Lessor by conspicuous sign or placard. Such identification and marking shall be attached to each unit of Loaned Equipment.
4.2 Lessee hereby represents and warrants that the Facility is appropriate for and conducive to the storage of equipment such as the Loaned Equipment and will permit the storage thereof free from hazards and damage of any nature whatsoever. If, for whatever reason, either Party believes or has reason to believe that the Facility is no longer appropriate for the proper storage of Loaned Equipment, the Parties shall, by mutual agreement, locate another facility suitable for the storage of the Loaned Equipment. It shall be the responsibility of Lessee, however, to maintain the Facility throughout the period that Lessee has in its possession the Loaned Equipment in such manner so as to remain suitable for the storage of the Loaned Equipment, including maintenance of the insurance coverage described herein.
4.3 Lessor shall have the right to inspect the Facility during business hours upon 5 days' prior notice
5. Title. Lessor shall retain title to the Loaned Equipment, and Lessee shall return the Loaned Equipment to the Lessor at the end of the Term.
6. Risk of Loss Passes Upon Delivery.
6.1 Lessor assumes the risk of loss, theft, or damage to the Loaned Equipment until the Loaned Equipment are delivered to the Facility. Lessor shall replace or repair any Loaned Equipment that are lost, stolen, or damaged before they are delivered to the Facility.
6.2 Notwithstanding Section 2, Lessee assumes the risk of loss, theft, or damage to the Loaned Equipment upon delivery of the Loaned Equipment to the Facility. Lessee shall pay Lessor the replacement cost of any Loaned Equipment that are lost, stolen, or damaged after the Loaned Equipment are delivered to the Facility.
7. Lessor's Security Interest in the Loaned Equipment.
7.1 Grant and Perfection of PMSI (Purchase Money Security Interest). Without derogating from Lessor's rights as owner of the Loaned Equipment Lessee:
(a) hereby grants to Lessor as security for the payment by Lessee of the purchase price of the Loaned Equipment purchased hereunder, as and when due, a purchase money security interest in all of Lessee's right, title, and interest in and to the Loaned Equipment to be purchased by Lessee and all proceeds thereof, and all documents of title covering such Loaned Equipment;
(b) shall cooperate with and assist Lessor in connection with establishing and maintaining Lessor's (i) title to the Loaned Equipment, and (ii) priority of ownership interest in and to such Loaned Equipment as against claims of secured and unsecured creditors of Lessee. In particular, Lessee authorizes Lessor, pursuant to Article 9 of the Uniform Commercial Code ("UCC") to file UCC financing statements, as Lessor may deem appropriate, in such jurisdictions as Lessor may deem appropriate as a Lessor in order to perfect its interest in the Loaned Equipment and proceeds thereof, and Lessor is authorized to take such other steps as may be necessary to secure Lessor's rights in and to the Loaned Equipment.
(c) shall further assist Lessor in fulfilling any and all notice requirements for the purpose of maintaining its priority ownership interest in and to the Loaned Equipment
8. Leins, Encumbrances, and Indemnity.
8.1 Liens and Encumbrances. Lessee shall maintain the Loaned Equipment free and clear of and from and against all liens and encumbrances of any nature whatsoever
8.2 Indemnity. Lessee shall indemnify and hold harmless Lessor from and against any loss or damage caused by acts of Lessee, whether or not authorized by these Terms and Conditions, which result in any such liens or encumbrances being placed upon any Loaned Equipment, including all costs, fees, and expenses incurred by Lessor in commencing or participating in such proceedings as are necessary for Lessor to defend its ownership interest in the Loaned Equipment
9. Payment Terms. Any payment due as a result of obligations under these Terms and Conditions, Loaned Equipment or a Loaner Agreement shall be paid no later than thirty (30) days after the date of each Invoice. Lessee shall pay to Lessor the amount appearing on the Invoice by wire transfer of immediately available funds to an account designated by Lessor.
10. Lessee's Responsibilities.
10.1 Lessee shall:
(a) clearly and conspicuously label the Loaned Equipment as property of Lessor;
(b) as best as possible segregate all Loaned Equipment from other goods; and
(c) secure and protect the Loaned Equipment stored in the Facility from loss or damage using the same degree of care that Lessor uses to protect its own equipment and products, but in no event less than a commercially reasonable degree of care.
10.2 Records. Lessee shall keep a true record of all Loaned Equipment in its possession and shall give representatives of Lessor access to such records during business hours. Lessee shall permit such representatives, during business hours, to make inventories of the Loaned Equipment in the possession of Lessee.
11. Return of the Loaned Equipment. The Loaned Equipment shall at all times be subject to the direction and control of Lessor, and on Lessor's demand for the return of any Loaned Equipment delivered under the Loaner Agreement, Lessee shall promptly return such Loaned Equipment in accordance with Lessor’s reasonable instructions. Lessee shall bear the risk of loss and the expense of returning any Loaned Equipment.
12. No Authority to Act for Lessor. Lessee shall conduct all of its business relating to the use of the Loaned Equipment in Lessee's name and at Lessee's cost and expense. Nothing herein shall authorize or empower Lessee to assume or create any obligation or responsibility whatsoever, express or implied, on behalf or in the name of Lessor, or to bind Lessor in any manner, or to make any representation, warranty, or commitment on behalf of Lessor, this Loaner Agreement being limited solely to the consignment of the Loaned Equipment herein specified.
13. Term; Termination.
13.1 Term. The period that Lessee shall retain and use the Loaned Equipment ("Term") shall equal the period stated in the Loaner Agreement. The Term will end upon notice by Lessor to Lessee, or the Term can be terminated earlier pursuant to Section 11 of these Terms and Conditions. The Term shall not automatically renew or be extended without express written consent from Lessor.
13.2 Termination. Lessor may (i) end any Loaned Equipment Term without prior notice to Lessee or (ii) delay or cancel any shipment of Loaned Equipment if:
(a) Lessee breaches any provision of these Terms and Conditions; or
(b) if Lessee (i) becomes insolvent or is generally unable to pay its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or
(c) if (i) Lessee sells, leases or exchanges a material portion of Lessee's assets, or Lessee merges or consolidates with or into another entity, or a change in control of Lessee occurs.
13.3 Effect of Expiration or Termination. In the event of any such termination of a Loaned Equipment Term under Section 11 or Section 13 hereof:
(a) Lessee shall return the Loaned Equipment at its own cost to Lessor during the 10-day period immediately following the effective date of such termination;
(b) any Loaned Equipment not returned to Lessor within such 10 day period after such effective date of such termination shall be deemed to have been sold to Lessee and shall be subject to the payment requirement set forth in Section 9 hereof except that payment shall be due on or before the fifth (5th) day after such tenth (10th) day period; and
(c) Lessee shall promptly:
(i) return to Lessorall documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on Lessor's Confidential Information;
(ii) permanently erase all of Lessor's Confidential Information from its computer systems and shall destroy any copies on the normal expiration of its backup files; and
(iii) certify in writing to Lessor that it has complied with the requirements of this Section 13.3.
14. Representations and Warranties.
14.1 Lessee's Representations and Warranties. Lessee represents and warrants to
Lessor that:
(a) it is a duly organized, validly existing and in good standing in the jurisdiction of its formation;
(b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of these Terms and Conditions and the Loaner Agreement;
(c) it has the full right, power, and authority to accept these Terms and Conditions, to grant the rights and licenses granted under these Terms and Conditions and to perform its obligations under these Terms and Conditions and the Loaner Agreement;
(d) the execution of the Loaner Agreement by its representative whose signature is set forth at th