SmartEntry™ SystemOn-Premise Subscription and Security Agreement
This SmartEntry™ System On-Premise Subscription and Security Agreement (sometimes, this “Subscription Agreement”) is incorporated into the SmartEntry™ Subscription Agreement Statement of Work (the “SOW”), between Client and Corserva, Inc. (“Corserva”, “we” or “us”).
This Subscription Agreement is subject to all of the terms and conditions of the SOW and all of the Exhibits and Schedules that are incorporated by reference into the SOW, including the Corserva SmartEntry™ Master Services Agreement and the Corserva SmartEntry™ Extended Services Support Agreement. Capitalized terms used in this Subscription Agreement but not otherwise defined have their respective meanings in the SOW. In the event of any conflict between this Subscription Agreement and the SOW, the terms of this Subscription Agreement will govern.
TERMS AND CONDITIONS OF ON-PREMISE SMARTENTRY™ SYSTEM RENTAL AND SECURITY AGREEMENT
This Subscription Agreement is for the subscription rental and use by Client of the SmartEntry™ System, which includes certain hardware, equipment and other products of Corserva that are identified in the SOW as owned by Corserva and rented to Client under this Subscription Agreement, which are to be maintained on Client’s premises (the “Rental”). This Subscription Agreement contains the exclusive terms and conditions upon which Corserva provides the on-premise rentals of the SmartEntry™ System. Corserva will not accept any other terms and conditions for any rental of any of the SmartEntry™ System, unless Client and an authorized officer of Corserva have executed a written agreement that specifically modifies, supersedes and replaces this Subscription Agreement in whole or in part as expressly set forth in such written agreement. Acceptance of the SmartEntry™ System rented to Client by Corserva is expressly made conditional upon the Client’s assent, express or implied, to this Subscription Agreement without any modification, unless expressly set forth in such written agreement.
NOTE: CLIENT GRANTS CORSERVA THE AUTHORITY TO FILE THIS SUBSCRIPTION AGREEMENT AS A FINANCING STATEMENT UNDER THE UNIFORM COMMERCIAL CODE WITH RESPECT TO ALL SECURITY INTERESTS CREATED UNDER THIS SUBSCRIPTION AGREEMENT.
- UNDERSTANDINGS AND BASIC TERMS. Client and Corserva agree to all of the following understandings and terms of this Subscription Agreement:
(a) Client has agreed to purchase the SmartEntry™ System and to license the SmartEntry™ System from Corserva under the SOW;
(b) Client has agreed to rent the physical components of the SmartEntry™ System from Corserva in conjunction with licensing the software and intellectual property and intangible elements comprising the SmartEntry™ System;
(c) Client acknowledges that Corserva is the sole owner of the SmartEntry™ System;
(d) Corserva has agreed to provide the physical components of the SmartEntry™ System to Client in consideration of Client’s payment of the SmartEntry™ System initial deposit and the fees that are included as part of the total fees set forth in the SOW and charged under the SOW, on the terms and subject to the conditions set forth in this Subscription Agreement and the SOW; and
(e) Client agrees to pay the initial deposit and the fees set forth in the SOW, which include the fees for the Rental of the SmartEntry™ System, whether or not they are separately stated (collectively, the “Fees”), to Corserva in accordance with the terms of the SOW.
- RENTAL. Corserva will furnish to Client, and Client will accept and pay the Fees, which include the initial deposit and the aggregate rental fees for the SmartEntry™ System identified in the SOW.
- DELIVERY, INSPECTION AND INSTALLATION. We will arrange for delivery of the SmartEntry™ System in accordance with the SOW.
- REFUSAL TO ACCEPT. If Client refuses to permit delivery or installation or to accept all or any part of the SmartEntry™ System, Corserva is entitled to receive (a) any part of the SmartEntry™ System 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.
- RENTAL FEES AND OTHER PAYMENTS. Client shall pay Corserva the Fees in accordance with the SOW.
- TAXES. 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 SmartEntry™ System (and reimburse Corserva for any fee or tax Corserva becomes obligated to pay because of our duties under this Subscription Agreement (including sales and excise taxes), but not taxes based on our net income), and any fines, penalties and interest thereon.
- CLIENT’S OPERATIONAL RESPONSIBILITIES. Client acknowledges that:
7.1 Client has independently determined that the SmartEntry™ System ordered under this Subscription Agreement meets Client’s requirements.
7.2 Client shall ensure that Client’s personnel, employees, and any other persons authorized to use the SmartEntry™ System (collectively, “Users”) are always educated and trained in the proper use, operation and care of the SmartEntry™ System, and that the SmartEntry™ System is always used in accordance with applicable Corserva manuals and instructions.
7.3 Client shall provide adequate warnings when necessary or desirable to prevent harm to people (including death) or property.
7.4 Except as otherwise specifically set forth in the SOW: Corserva will not be responsible for retaining any of Client’s data after termination of the subscription for the SmartEntry™ System; Client’s data may be deleted promptly after the subscription for the SmartEntry™ System is terminated and from backups during scheduled backup rotation; Corserva will not restore, provide on any storage media or send out any data pertaining to terminated use of the SmartEntry™ System; and it is Client’s responsibility to back-up and migrate Client’s data before termination of Client’s subscription for the SmartEntry™ System or any other action that can lead to deletion of any of Client’s data from the SmartEntry™ System.
- WARRANTIES AND DISCLAIMERS. Read the following disclaimers carefully. They apply to (a) any and all goods, software and services comprising the SmartEntry™ System, and (b) any goods, software and services not designated as comprising the SmartEntry™ System.
Except as expressly stated herein, Corserva makes no warranties, express or implied, by operation of law or otherwise. Without limiting the foregoing sentence, Corserva disclaims the implied warranties of merchantability and fitness for a particular purpose with regard to the SmartEntry™ System.
Corserva warranties extend solely to Client.
Corserva does not make any warranties of any kind that the SmartEntry™ System 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 any component of the SmartEntry™ System is (a) altered, including installation of or interfacing computer programs that are not the SmartEntry™ System as described in this Subscription Agreement or the SOW, (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 the SmartEntry™ System, (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 Corserva environmental specifications, or (f) subjected to improper site preparation or maintenance.
8.2 Corserva shall have no responsibility for the effect that the installation of any software may have on any warranties relating to the SmartEntry™ System.
SmartEntry™ System Warranties
8.3 Corserva warrants that the SmartEntry™ System will be free from defects in material and workmanship throughout the Term. During this warranty period, Corserva shall repair or replace any defective components of the SmartEntry™ System, if Client promptly reports the defect in accordance with the terms of the SOW. Because the SmartEntry™ System requires ongoing maintenance, the preceding warranty is not a substitute for periodic replacement parts and any alterations necessary to keep the SmartEntry™ System in good working order. Corserva makes no representation or warranty as to components of Client’s systems other than the SmartEntry™ System. Client agrees to look solely to the warranties and remedies, if any, provided by the manufacturers of such components of Client’s systems other than the SmartEntry™ System.
- ALTERATIONS AND ATTACHMENTS; INDEMNITY. Client shall not make or allow to be made any alterations or attachments to the SmartEntry™ System. Corserva is not responsible for any malfunction, nonperformance or degradation of performance of the SmartEntry™ System, 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 Corserva. Corserva warranties will not apply if any maintenance, repairs, attachment or equipment not supplied by Corserva or alteration of the SmartEntry™ System occurs or is allowed by Client to occur. Client will be solely responsible for any infringement, personal injury, death or damage to property and the SmartEntry™ System resulting from such maintenance, repair, alteration, modification or attachment. Client shall defend, indemnify and hold harmless Corserva 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 SmartEntry™ System or violation of this Subscription Agreement.
- 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 Subscription Agreement, 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 Subscription Agreement to the contrary, Corserva’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 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 SOW, the entire liability of Corserva and Client’s exclusive remedy for any defects in the SmartEntry™ System provided under this Subscription Agreement is limited to Corserva’s replacement of the SmartEntry™ System or for refund of the portion of the Fees paid to Corserva for the SmartEntry™ System (not including any amounts paid for related services), at Corserva’s option.
10.4 Client acknowledges that the limitations contained herein permit Corserva to provide the SmartEntry™ System at lower rates than Corserva otherwise could, and such limitations are reasonable.
10.5 These limitations of damages are intended to limit Corserva’s exposure for damages. Corserva 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, Corserva shall not be liable to Client or any third party for any consequential, indirect, incidental or special damages, even if Corserva has been advised of the possibility of such damages. Corserva’s total liability for all causes of action added together may not exceed the amount described in Section 10.2 with respect to all components of the SmartEntry™ System and all claims made under this Subscription Agreement that result in Corserva’s liability.
- RISK OF LOSS: Client shall bear all risks of loss, theft, damage or destruction of the components of the SmartEntry™ System that are on Client’s premises (“Rented Components”) from any cause. Client shall promptly notify Corserva in writing of any such loss, theft, damage or destruction of the Rented Components. Except as otherwise provided in the SOW, if damage of any kind to the Rented Components occurs (unless the damage is beyond repair), Client shall engage Corerva, at Client’s expense, place the Rented Components in good repair, condition and working order. If Corserva determines that Rented Components are lost, stolen, destroyed or damaged beyond repair and Client is not entitled to repair or replacement by Corserva under the terms of the SOW, then Client shall immediately pay in addition to unpaid late charges, and additional rent, an amount equal to (i) all unpaid Fees attributable to the rental of the SmartEntry™ System that are due and to become due under this Subscription Agreement, 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 SmartEntry™ System. Only upon such payment, the Rental under this Subscription Agreement shall terminate.
- INSURANCE: 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 SmartEntry™ System and its use, in such amounts as may be acceptable to us, and naming Corserva as additional insured, and (b) insurance insuring the SmartEntry™ System 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 Subscription Agreement, or (ii) the full replacement value (new) of the SmartEntry™ System, with loss payable solely to Corserva. 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 SmartEntry™ System and/or satisfy any of Client’s obligations under this Subscription Agreement. 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 SmartEntry™ System shall provide that the coverages shall not be invalidated against Corserva 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 Corserva.
- USE OF SMARTENTRY™ SYSTEM. Client shall use the SmartEntry™ System solely for business or commercial purposes. Client warrants that the SmartEntry™ System 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 systems may be operated. Any alterations, modifications, additions or improvements, and all repairs, parts and supplies shall be the property of Corserva and shall be subject to the terms of this Subscription Agreement.
- SECURITY AGREEMENT; SECURITY INTEREST. Client grants Corserva a security interest in all the components of the SmartEntry™ System and all other items of property in which Corserva has any interest under this Subscription Agreement or the SOW, 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 Corserva.
- OWNERSHIP: Title to the SmartEntry™ System throughout the Rental term shall at all times be in Corserva. 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 components of the SmartEntry™ System free and clear of all such claims, liens and processes.
15.1 Client shall not assign or transfer the Rental, this Subscription Agreement or Client’s rights under this Subscription Agreement or sublease the SmartEntry™ System, or remove or permit the SmartEntry™ System or any parts thereof to be removed from the location specified above as Client’s address (or SmartEntry™ System location, if another location has been specifically permitted under the terms of this Subscription Agreement) or permit the SmartEntry™ System to be used by anyone other than Client’s employees or Client’s Users. Client shall keep Corserva’s interest in the SmartEntry™ System and each component of the SmartEntry™ System 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 the SmartEntry™ System is installed and of any purchaser or present or future creditor obtaining a lien on such real estate. At Corserva’s request, Client will obtain and deliver a waiver of any interest of Client’s landlord and mortgagees of such real estate in the SmartEntry™ System in a recordable form supplied by Corserva.
15.2 The SmartEntry™ System 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 Corserva shall have the right to remove each component of the SmartEntry™ System from its location, at Client’s sole cost and expense, unless the SOW provides otherwise. Corserva shall not be liable for any damage caused to the real estate or any building by the removal of the SmartEntry™ System, and Client hereby indemnifies Corserva against any damage.
15.3 Client shall at Corserva’s request securely affix conspicuous tags or plates on the SmartEntry™ System containing a notation that each component of the SmartEntry™ System is owned by Corserva. Client agrees from time to time to execute and file any financing statements, security schedules, and similar instruments, that in Corserva’ judgment are necessary to protect Corserva. Client authorizes Corserva and its assignees to file one or more financing statements with respect to the SmartEntry™ System and/or additional collateral without Client’s signature. Client appoints Corserva 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 Subscription Agreement or a financing statement.
15.4 Corserva 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 SmartEntry™ System.
- RETURN OF THE SMARTENTRY™ SYSTEM. Upon the expiration or termination of the Rental, Client shall return the SmartEntry™ System 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 Corserva for Corserva’s removal of the SmartEntry™ System. Client shall properly prepare the premises for removal of the SmartEntry™ System, 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 Subscription Agreement. All provisions applicable to the initial Rental term shall apply to the extended Rental term, except as provided in the following sentence. The Rental term is automatically extended for a 5-year extended term, upon the expiration or termination of the extended Rental, if Client have not returned the SmartEntry™ System to Corserva in accordance with the terms of this Section 16, and the Rental term shall continue on a month-to-month basis until Client returns the SmartEntry™ System, or Corserva 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 SmartEntry™ System, Client shall pay us the renewal rent for the SmartEntry™ System, monthly, from the Rental expiration date through the month in which the SmartEntry™ System is returned.
- DEFAULT. The occurrence of any one of the following shall constitute an Event of Default under this Subscription Agreement, which shall also be a default under the SOW: (a) Client fails to pay any installment of Fees or other amount due hereunder on or before its due date, or fails to provide access to Corserva to recover the SmartEntry™ System in accordance with Section 16 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 SmartEntry™ System, or if Client attempts to do any of the foregoing; (c) Client fails to maintain in force the required insurance on the SmartEntry™ System 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 Subscription Agreement or in any other Schedule now or hereafter executed between Client and Corserva, and such failure continues uncured for 10 days after written notice to Client by Corserva; (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 Subscription Agreement, if any payment is not made in a timely manner, without any right to cure, unless such right to cure is granted by Corserva in any particular instance in Corserva’s sole discretion. If an Event of Default occurs, Corserva shall be entitled to exercise all remedies, including but not limited to those listed in those listed in Section 18 of this Subscription Agreement and those contained in the SOW.
- REMEDIES FOLLOWING DEFAULT. Upon the occurrence of any Event of Default, Corserva may at our option do any of the following: (i) terminate the Rental under this Subscription Agreement; (ii) whether or not the Rental is terminated, take possession of any or all of the SmartEntry™ System, and for such purpose, enter upon any premises without liability for so doing, or cause Client to, and Client hereby agrees to, return the SmartEntry™ System to Corserva as provided in this Subscription Agreement; (iii) sell, dispose of, hold, use or lease any SmartEntry™ System as Corserva, 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 Fees and other sums due under this Subscription Agreement through the date of the Event of Default, (b) any expenses paid or incurred by Corserva in connection with the repossession, holding, repair and subsequent sale, lease or other disposition of the SmartEntry™ System, 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 Corserva 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 SmartEntry™ System by Corserva. Any right afforded Corserva 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 Corserva from enforcing its rights and establishing its damages sustained as a result of any breach of this Subscription Agreement in any action or proceeding in which Corserva seeks to enforce its rights and recover such damages, in accordance with the laws of such jurisdiction. Without prejudice to other remedies, Corserva may cancel this Subscription Agreement or part thereof or any order placed under it and repossess the SmartEntry™ System and/or disable Client’s use of the SmartEntry™ System 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 Subscription Agreement will not affect any rights or duties arising with respect to Proprietary Information.
- OTHER CHATTEL PAPER. As additional collateral security for Client’s obligations, Client grants Corserva a further security interest in the SOW and all machinery, equipment, software and goods covered by any other lease or security agreement (collectively, the “other Agreements”) between Client and Corserva as security for Client’s obligations under this Subscription Agreement, 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.
- ASSIGNMENT. Corserva may assign or otherwise transfer the Rental and/or this Subscription Agreement and any and all of Corserva’s right, title and interest under this Subscription Agreement and in the SmartEntry™ System, including the right to receive Fees and all other amounts payable hereunder, without Client’s consent. If Corserva assigns the Rental or this Subscription Agreement, 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 Corserva. Upon Corserva’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 Subscription Agreement as such assignee may direct in writing. Following any such assignment, the terms “Corserva,” “we,” and “us,” shall be deemed to include or refer to Corserva’s assignee, but no such assignee shall be deemed to assume any obligation or duty imposed upon Corserva. Client shall look only to Corserva for performance of our duties under this Subscription Agreement. 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 SOW, the SmartEntry™ System or the Rental or this Subscription Agreement by Corserva; and the term “assignee” refers to the recipient of such pledge, hypothecation, sale, mortgage or security interest. Client may not assign this Subscription Agreement or transfer Client interest in this Subscription Agreement without Corserva’ 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.
- RENTAL, IRREVOCABILITY: Upon acceptance of the SmartEntry™ System under the SOW, this Subscription Agreement and the SOW shall constitute a non-cancelable net lease covering the components of the SmartEntry™ System listed in the SOW. Client’s obligations to pay all Fees and other amounts when due and to perform as required under this Subscription Agreement are unconditional and irrevocable. Delinquent installments of Fees and other sums due under this Subscription Agreement 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 Corserva, the manufacturer or supplier, defect in, lack of fitness for use of, loss of possession or use of or damage or destruction of any SmartEntry™ System, any prohibition against use or otherwise.
- INITIAL DEPOSIT. Corserva may, at its option, require an initial deposit (“Initial Deposit”) and the Initial Deposit shall be considered a component of the “Fees” under this Subscription Agreement. Corserva may, at its sole option, apply the Initial Deposit to cure any of Client’s defaults under this Subscription Agreement, whereupon Client shall promptly restore the mount of the Initial Deposit to its original amount.
- NOTICES. All notices required by this Subscription Agreement to be given to Client will be sent to Client’s address on the SOW or to such other address as Client shall designate in writing to Corserva. All notices required to be given to Corserva and all requests for information under Section 8 will be addressed to Corserva at the address provided in the SOW, or to such other address as Corserva shall from time to time designate, and shall be sent by U.S. registered mail, postage and registry fees prepaid.
- 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 Subscription Agreement, which shall also be a default under the SOW, if any payment is not made in a timely manner, without any right to cure, unless such right to cure is granted by Corserva in any particular instance in Corserva’s sole discretion. If an Event of Default occurs, Corserva shall be entitled to exercise all default remedies, including but not limited to those listed in the SOW and the SOW and those listed in Section 18 of this Subscription Agreement.