GENERAL TERMS AND CONDITIONS
The following terms and conditions apply to the rental or sale by Electro Rent Corporation dba Rush Computer Rentals (“RUSH”) of any “Equipment” (which term includes related accessories, manuals and other items delivered with this order) to Customer. By placing an order with RUSH, Customer agrees to and accepts these General Terms and Conditions, none of which can be modified except in a writing signed by an authorized officer of RUSH. All previous communications, representations or agreements between the parties, whether oral or written, regarding the transactions involved are superseded. CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS WILL NOT APPLY, WHETHER INCLUDED IN THE PURCHASE ORDER OR NOT.
1. Payment Terms; Taxes. Terms are NET THIRTY (30) DAYS from invoice date. Any amounts not paid by that date are subject to finance charges at the rate of 1-1/2% per month, not to exceed the maximum lawful rate. Customer shall pay any federal, state and local taxes and other governmental charges in connection with the rental, purchase, possession or use of the Equipment (other than taxes on RUSH’s net income) including sales, use, property, franchise and excise taxes on gross rent receipts. If Customer has outstanding invoice(s) with RUSH and submits payment for rental transaction without directing RUSH how to apply payment, RUSH will automatically apply payment to the oldest rental charge. RUSH may charge the Customer up to 25% of the list price or the aggregate rental price of the Equipment if Customer delays or cancels an order. In the event that the amount paid by Customer differs from the amount RUSH’s records indicate to be due, and such difference is less than $50, the amount paid by Customer shall be deemed to be the actual amount due.
2. Credits. RUSH may issue credits to Customer’s account in certain circumstances, including potential overpayments or duplicate payments in excess of $50, for early termination of a rental, as customer accommodations or incentives or for other reasons. The mere issuance of a credit by RUSH to Customer’s account shall not constitute a determination or admission by RUSH that an amount is actually due to Customer, and RUSH expressly reserves the right to revoke or rescind any credit in the event that RUSH subsequently determines that the credit is not due or may not be due to Customer. Customer may request to utilize a credit against a future purchase or rental from RUSH or a refund of such credit. Upon receipt of such request, RUSH shall confirm whether the credit is actually due to Customer, and if the credit is due, RUSH shall apply or refund the credit as requested by Customer (except for certain types of credits, such as customer accommodations or incentives, which may not be refundable). Any credits not used or refunded within 12 months of issuance will be reduced by a service fee of 8% per month of the initial credit amount. In the event that a credit is issued to Customer, RUSH shall send periodic credit invoices to Customer notifying Customer of any outstanding credits and also indicating the date by which the credits must be utilized in order to avoid a service fee. ONCE IMPOSED, THE SRUSHVICE FEE IS NON-REFUNDABLE AND WILL NOT BE WAIVED, REVERSED OR RESTORED TO CUSTOMER BY RUSH. Customer expressly releases and discharges RUSH from any liability to Customer with respect to any credits that have been reduced by such service fees, or which RUSH has determined are not due to Customer.
3. Delivery FOB RUSH Facility. For all shipments except for the sale of new Equipment, (see ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO EQUIPMENT SALES for new equipment), delivery of all items is FOB RUSH’S supplying office. Title transfers and Customer acceptance occurs upon shipment from RUSH’s supplying office. All risk of loss or damage from shipping, theft, mysterious disappearance, fire or any other cause is the responsibility of Customer thereafter. RUSH will make reasonable efforts to meet any delivery schedule quoted; but shall not be responsible for failure to meet such delivery schedule, regardless of the reason for such failure. RUSH will ship Equipment according to Customer’s reasonable shipping instructions; if no reasonable method is specified, RUSH will select the method. Equipment shall not be shipped by RUSH or returned by Customer by U.S. mail. Customer will pay or reimburse RUSH for all delivery and handling charges.
4. Limited or No Warranty; Limitation on Damages. RUSH is not the manufacturer of any Equipment. Unless expressly set forth on the face of this document, warranties, if any, are only those of the manufacturer. RUSH’s sole responsibility for any breach of any warranty it provides will be (i) to repair such Equipment at RUSH’s facility, (ii) replace such equipment, or, (iii) if RUSH determines that neither of these two options is reasonable, to cancel such order with no further obligation to Customer. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS AND CONDITIONS, RUSH DISCLAIMS ANY AND ALL WARRANTIES EXPRESSED OR IMPLIED; INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR THAT THE EQUIPMENT DOES NOT INFRINGE UPON ANY PATENT OR PROPERTY RIGHT OF ANY THIRD PARTY. Customer shall indemnify and hold RUSH harmless from any and all claims and actions asserted against RUSH for injury to persons and property related to any use of the Equipment. In no event will RUSH, its subcontractors or suppliers be liable for special, incidental, indirect or consequential damages (including downtime costs, loss of data, restoration costs, lost profits, or cost of cover) regardless of whether such claims are based on contract, tort, warranty or any other legal theory, even if advised of the possibility of such damages. The remedies in these Terms are Customer’s sole and exclusive remedies. Customer acknowledges that RUSH has based its pricing on the limitations in this section.
5. Right of Setoff. In addition to any rights now or hereafter granted under applicable law and not by way of limitation of any such rights, RUSH is hereby authorized by Customer at any time and from time to time, without notice or demand to Customer or to any other person (any such notice and demand being hereby expressly waived), to set off, recoup and to appropriate and to apply any and all funds which may be in the possession of, or which may be owed by, RUSH against any obligation of Customer or Customer’s affiliates to RUSH, whether such obligation is liquidated, unliquidated, fixed, contingent, matured or unmatured, and regardless of whether such obligation arises under this agreement or a different agreement between RUSH and Customer or Customer’s affiliate.
6. Compliance. The parties agree to comply with applicable laws and regulations. RUSH may suspend performance if Customer is in violation of applicable laws or regulations. No U.S. government procurement regulation shall be deemed a part of this agreement or be applicable to RUSH unless specifically agreed to in writing by RUSH. The Equipment may not be used as parts, components or assemblies for the planning, construction, maintenance or direct operation of a nuclear facility. Customer agrees to comply with all United States and other applicable laws and regulations regarding the exportation, transshipment, importation, use, sale, diversion and re-exportation of the Equipment, and assumes responsibility for determining whether any shipment of Equipment requires government authorization or would otherwise violate applicable law. Any included software may only be used strictly in accordance with any applicable license(s). Any party defaulting on any of its obligations hereunder shall pay for all costs, expenses and legal fees incurred by the other party to enforce its rights, whether or not legal action is instituted, including in the case of RUSH, the costs of recovering, repairing of replacing the Equipment.
7. Miscellaneous. All notices hereunder shall be in writing. Typographic and/or clerical errors may be corrected by RUSH on notice to Customer. This agreement shall be governed by and construed in accordance with the laws of the State of California. Any legal action or proceeding with respect to this agreement shall be brought exclusively in the state or federal courts in California, and the parties hereby consent to the venue and jurisdiction of such courts. The United Nations Convention on Contracts for the International Sale of Goods will not apply. To the extent that any provision or a portion of any provision is determined to be illegal or unenforceable, the remainder will remain in full force and effect. Customer may not transfer or encumber any rights hereunder without the consent of RUSH; RUSH may assign or transfer any of its rights or obligations upon notice in connection with a transfer of its business. No waiver by either party of any breach of any provision of this agreement shall be construed as a waiver of any subsequent breach or as a continuing waiver of such breach. Any approval, consent or determination of RUSH shall be given in RUSH’s sole and absolute discretion. Time is of the essence. “Including” means “including without limitation.”
8. Returns. Returned Equipment must have a Return Merchandise Authorization Form issued by RUSH within any applicable warranty period and be packaged in original packing materials and shipped prepaid freight to RUSH’s designated center. For new Equipment, RUSH may assess a restocking fee.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO RENTALS
1. Ownership; Use. All Equipment remains the property of RUSH at all times. Customer SHALL NOT sublease or assign any rights to or for rental Equipment. Customer will not permit any ownership labels to be removed, obscured or defaced. Equipment must remain at and may be used only by Customer at Customer’s place of business designated on the face of the Contract. Customer shall pay any costs arising from a change of location with or without RUSH’s written consent. If RUSH has given written consent for Customer to relocate Equipment, Customer shall be responsible for all related cost including return shipping. Customer shall not make any alterations, additions or modifications to the Equipment and shall use it only for the purpose and in the manner intended by the manufacturer. Customer has no purchase rights, purchase options or equity accruals unless specifically otherwise stated by RUSH in writing, all of which will be immediately lost if Customer fails to timely pay all sums due under this Agreement.
2. Rental Terms. Unless otherwise stated in the Contract: (a) rates quoted are for a thirty (30) day rental period; (b) minimum rental is thirty (30) days; (c) the minimum billing regardless of duration or rental rate is $100; (d) rental charges commence the day RUSH ships the Equipment to Customer; (e) rent is prorated on a daily basis starting at the beginning of the second rental billing period; and (f) rent continues to accrue until the Equipment is returned to the RUSH specified location or in the case of lost or destroyed Equipment, until Customer notifies RUSH of the circumstances regarding the loss. Customer may be charged a processing and handling fee for any lost or damaged equipment or accessories. In the event of lost or damaged Equipment customer will pay the actual cost to replace or repair Equipment as determined by RUSH as well as a damage evaluation fee. If requested to do so by RUSH, Customer will furnish RUSH with proof that Customer has insurance coverage on the Equipment acceptable to RUSH. If Customer fails to do so, RUSH may at its option and for its benefit alone, obtain insurance and charge the cost to Customer as additional rent.
3. Repair/Damage. Upon reasonable notice from Customer during the course of rental, RUSH will repair normal defects in material and will additional will cover an operational or mechanical failure caused by a defect of the equipment. Normal wear and tear, theft, misplacement, reckless, abusive or intentional conduct is not covered by this warranty. Customer will pay the costs of any repair if the Equipment has been neglected, misused or abused after receipt by Customer, or permits anyone other than RUSH to work on or service the Equipment. All software and data on an equipment returned for repair will need to be backed up by Customer prior to being repaired, as during hardware service all contents will be deleted, and the storage media will be reformatted. The replacement or repaired unit will be returned as it was originally configured at the start of the rental period. Customer must pay rental charges if any Equipment replaced by RUSH is not properly returned to RUSH not later than the earlier of ten (10) calendar days after shipment of the replacement Equipment or (ii) the expiration of the rental term.
4. Damage Waiver. Provide Customer pays the stated Damage Waiver Fee, which shall be charged for all items on the order (no split coverage), RUSH will waive any accidental damage done to the equipment. This coverage does not apply to product with a serial number that has been altered, defaced/removed, or has been modified to alter its functionality or capability. The following is not covered by RUSH: (a) loss from theft; (b) mysterious disappearance; (c) natural disaster; (d) intentional misuse or abuse; and (e) Act of War. Any damaged equipment (including all parts and accessories) must be returned to qualify for this option. Customer must inform RUSH within one business day of any damage to the equipment customer wishes to apply the damage waive against. A service charge of $49 will apply to all claims submitted regardless of outcome.
5. Lost Laptop Waiver. Provide Customer pays the stated Lost Laptop Waiver Fee, which shall be charged per laptop for all laptops on the order (no split coverage), RUSH will waive the loss of a laptop on that order during the stated waiver term period. Any damage to a laptop (including any parts or accessories) is not covered under the Lost Laptop Waiver and Customer will be charged for any such damage as otherwise stated in these Terms. Customer must inform RUSH within one business day of the lost laptop for which customer wishes to apply the loss waiver against. A deductible of $100 will apply to any claim submitted. Only one laptop per claim will be allowed and Customer may only make two (2) loss claims per month regardless of the number of outstanding orders. Any software license originally provided with a lost laptop shall immediately terminate (with no refund) upon the reporting of the loss. This waiver is not valid for a loss outside of the United States or Canada.
6. Return. Customer agrees to return the Equipment, freight prepaid, properly packaged, and will be responsible for delivery to RUSH in the same condition as when first received by Customer, reasonable use and wear alone excepted. Customer’s license with respect to any software included with the Equipment will terminate on the expiration or termination of the rental, at which time Customer agrees promptly to return the software to RUSH and to destroy any archived copies.
ADDITIONAL TERMS AND CONDITIONS APPLICABLE TO EQUIPMENT SALES
1. Delivery of new Equipment. FOB Destination. For the sale of new Equipment, delivery is FOB Customer’s destination.
2. Title. Title to new Equipment will pass to Customer upon delivery. Acceptance of new Equipment by Customer will occur upon delivery. Customer hereby grants to RUSH a first priority security interest on the Equipment and all proceeds thereof, which shall expire only upon Customer making payment in full to RUSH for the Equipment. Customer authorizes RUSH to file financing statements covering the Equipment in any jurisdiction RUSH deems appropriate.
3. Warranties. All Equipment is used unless otherwise expressly identified in writing by RUSH on the face of this document.
4. New Equipment. For all new Equipment, Customer will look exclusively to any manufacturer’s warranty with respect to any defects.
5. Other than New Equipment. Sales of all other Equipment, including in the case of direct sales or sales under a purchase option, are without warranty and may not be returned unless expressly stated in writing on the face of this document, in which case the warranty period shall start on the date of shipment by RUSH and run for (i) 120 days for Test and Measurement Equipment and (ii) 30 days for computer equipment (excluding accessories or consumables (i.e. batteries, toner cartridges, ribbons, etc.), which are always sold “AS IS”).