by Lessor to enforce
any such warranty which is enforceable by Lessee in its own name; provided,
however, that Lessee shall not be obligated to commence any suit or action or
resort to litigation to enforce any such warranty unless Lessor shall pay for
all expenses in connection therewith.
17.
Warranties, Disclaimers and Indemnity
Lessor warrants that at the time the Equipment is delivered to Lessee, Lessor
will have full right, power and authority to lease the Equipment to Lessee.
EXCEPT FOR THE WARRANTY IN THE SENTENCE IMMEDIATELY PRECEDING THIS ONE, LESSOR
DOES NOT MAKE ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
2 of 4
LIMITATION: THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR
USE, OF CONDITION, PERFORMANCE, SUITABILITY OR DESIGN, OR CONFORMITY TO ANY LAW,
RULE, REGULATION, AGREEMENT OR SPECIFICATION, OR OF INFRINGEMENT OR ANY PATENT,
TRADE SECRET, TRADEMARK, COPYRIGHT OR OTHER INTANGIBLE PROPERTY RIGHT. LESSEE
ACKNOWLEDGES THAT IT IS NOT RELYING ON LESSOR'S SKILL OR JUDGMENT TO SELECT OR
FURNISH GOODS SUITABLE FOR ANY PARTICULAR PURPOSE AND THAT THERE ARE NO
WARRANTIES CONTAINED IN THIS LEASE AGREEMENT. LESSOR SHALL HAVE NO LIABILITY TO
LESSEE (OR ANY OTHER PERSON OR ENTITY), NOR SHALL LESSEE ABATE PAYMENTS, FOR ANY
LOSS, CLAIM OR DAMAGE OF ANY NATURE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY,
INDIRECTLY, INCIDENTALLY OR CONSEQUENTIALLY BY THE EQUIPMENT, ANY INADEQUACY
THEREOF, DEFICIENCY OR DEFECT THEREIN WHETHER KNOWN OR KNOWABLE BY LESSOR), BY
ANY INCIDENT WHATSOEVER ARISING IN CONNECTION THEREWITH, WHETHER IN STICT
LIABILITY OR OTHERWISE, OR IN ANY WAY RELATED TO OR ARISING OUT OF THIS LEASE
AGREEMENT OR ANY LEASE SCHEDULE.
LESSEE EXPRESSLY WAIVES ANY AND ALL RIGHTS AND REMEDIES CONFERRED UPON A LESSEE
UNDER ARTICLE 2A OF THE UNIFORM COMMERCIAL CODE AND ANY RIGHTS NOW OR HEREAFTER
CONFERRED UPON A LESSEE BY STATUTE OR OTHERWISE THAT MAY LIMIT OR MODIFY
LESSOR'S RIGHTS AS DESCRIBED IN THIS SECTION OR OTHER SECTIONS OF THIS LEASE
AGREEMENT.
LESSEE ACKNOWLEDGES AND AGREES: (A) LESSOR HAS NOT MADE ANY REPRESENTATION,
WARRANTY OR PROMISE MADE BY ANY SUPPLIER; NEITHER SUPPLIER NOR LESSOR IS AN
AGENT FOR THE OTHER AND LESSOR WILL NOT BE BOUND BY OR LIABLE FOR ANY
REPRESENTATION, WARRANTY OR PROMISE MADE BY SUPPLIER; (B) LESSOR WILL NOT BE
LIABLE FOR ANY FAILURE OF ANY EQUIPMENT OR ANY DELAY IN ITS DELIVERY OR
INSTALLATION; AND (C) LESSEE HAS SELECTED ALL EQUIPMENT WITHOUT LESSOR'S
ASSISTANCE. NO DEFECT, UNMERCHANTABILITY OR UNFITNESS OF THE EQUIPMENT SHALL
RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR PERFORM OTHER OBLIGATIONS UNDER
THIS LEASE.
Lessee agrees that Lessor shall not be liable to Lessee for, and Lessee shall
indemnify, defend and hold Lessor harmless with respect to, any claim from a
third party for any liability, claim, loss, damage, cost or expense of any kind
or nature, whether based upon a theory of strict liability or otherwise, caused,
directly or indirectly, by: (i) the inadequacy of any item of Equipment,
including software, for any purpose; (ii) any deficiency or any