HARDWARE TERMS

Any Hardware sold, rented or leased to Partner is subject to the following terms and conditions. All terms not defined herein shall have the meaning set forth in the Agreement.

Partner may elect to purchase, rent or lease Hardware as indicated in the Order Form. For rentals, the initial term is 18 months, and the rental continues thereafter on a month to month basis. The initial 18 month term is non-cancellable, meaning that Partner may not terminate the rental during such 18 month term. After the initial 18 month term, Partner may terminate on 30 days’ prior written notice to Axcient. For leases, the term is 12, 24, or 36 months and Partner will own the Hardware after making all lease payments during such term. The term is non-cancellable, meaning that Partner may not terminate the lease during such 12, 24 or 36 month term. Axcient hereby reserves, and Partner hereby grants to Axcient, a purchase money security interest in the Hardware. Partner’s failure to pay any amount when due shall give Axcient the right to repossess and remove the Hardware. Partner agrees, without further consideration, at any time to do or cause to be done, executed and delivered, all such further acts and instruments as Axcient may reasonably request in order to perfect Axcient’s security interest in the Hardware.

Software embedded within Hardware may only be licensed, not sold. Axcient hereby grants Partner (and its End-User) a nonexclusive, nontransferable, worldwide right to access and use the Software for the duration of the term solely as necessary to use the Services for Partner’s and End-User’s internal business purposes. Software may only be used in connection with the specified number of Hardware in the applicable Order Form. Partner, on behalf of itself and its End-User, acknowledges that the Hardware contains or is provided with copyrighted Software of Axcient’s suppliers (“Third Party Software”). All third party licensors and suppliers retain all right, title and interest in and to such Third Party Software and all copies thereof, including all copyright and other intellectual property rights. Partner’s and End-User’s use of any Third Party Software shall be subject to, and Partner and End-User shall comply with, the applicable restrictions and other terms and conditions set forth (a) in this Agreement or the Documentation applicable to Software and (b) in such Third Party Software documentation or printed materials.

THE HARDWARE AND THIRD PARTY SOFTWARE ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, FROM AXCIENT; HOWEVER, AXCIENT WILL PASS THROUGH ANY TRANSFERRABLE WARRANTIES FROM THE HARDWARE MANUFACTURER.

Axcient may access Partner’s and End-User’s account and the Hardware in connection with providing technical support or respond to complaints about the Axcient Services or Software. Axcient shall also have the right, but not the obligation, to monitor the Axcient Services and Software to determine compliance with this Agreement, including the use rights and restrictions set forth herein.

Unless otherwise provided in an Order Form, Axcient shall ship Hardware to Partner FCA (Incoterms 2010) Axcient’s shipping point designated by Axcient (the ‘Axcient FCA Point’). Upon delivery to Partner’s carrier at the Axcient FCA Point, Partner shall be responsible for and bear the entire risk of loss and damage to any Hardware (including insurance charges). As between Partner and Axcient, title to any Software incorporated in the Hardware remains with Axcient or its licensor at all times. If Partner purchases Hardware, title to such Hardware shall pass to Partner upon delivery at the Axcient FCA Point, but subject to Axcient’s security interest as provided above. If Partner rents or leases Hardware, title to such Hardware shall remain with Axcient. All delivery dates are estimates only. Partner agrees that Hardware shall be deemed irrevocably accepted upon delivery.

Upon termination of the Agreement, Partner shall promptly return and/or certify destruction, at Axcient’s option, of all copies of the Axcient Software and Documentation. Partner shall certify in writing within five (5) business days of termination that it has complied with this requirement and that no Axcient Software is being used or retained on any Hardware. Partner shall, at its own expense, return all rented and leased Hardware to Axcient within thirty (30) days after such termination, but Partner remains fully obligated for all remaining rental or lease payments due during the full term of such rental or lease (monthly rental or lease payment multiplied by the number of months remaining in the applicable term).

Hardware Payment Terms – If Partner purchases Hardware, full payment for such Hardware is due within 5 days after the date of Axcient’s invoice. If Partner elects to rent or lease Hardware, the monthly rental or lease payment is due within 5 days after the date of Axcient’s invoice. Hardware will not ship until payment is made (either full payment for a purchase or the first monthly payment for a rental or lease). Partner is liable for all monthly payments for the full rental or lease term and is not released from such payment obligations by returning Hardware.

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