fails or refuses to sign the Delivery and Acceptance Certificate within a
reasonable time, not to exceed five (5) business days, after the Equipment has
been delivered, installed and is operating to Manufacturer's specifications,
Lessor shall have the option of treating the Lease as cancelled by Lessee and
Lessee shall automatically assume all of Lessor's rights and obligations as
purchaser of the Equipment, whether under an Acquisition Agreement or otherwise.
IT IS HEREBY AGREED THAT LESSOR IS NOT RESPONSIBLE FOR THE PERFORMANCE,
MAINTENANCE OR SERVICING OF THE EQUIPMENT AND LEASES SAME "AS-IS."
4.
SELECTION OF EQUIPMENT AND DISCLAIMER OF WARRANTY.
Lessee has selected both
the Equipment and the Vendor and/or Manufacturer from whom Lessor covenants to
purchase the Equipment at Lessee's request. LESSEE ACKNOWLEDGES THAT LESSOR HAS
NO EXPERTISE OR SPECIAL FAMILIARITY ABOUT OR WITH RESPECT TO THE EQUIPMENT.
LESSEE AGREES THAT THE EQUIPMENT LEASED HEREUNDER IS LEASED "AS-IS" AND IS OF A
SIZE, DESIGN AND CAPACITY SELECTED BY LESSEE AND THAT LESSEE IS SATISFIED THAT
THE SAME IS SUITABLE FOR LESSEE'S PURPOSES, AND THAT LESSOR HAS MADE NO
REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY OR DURABILITY OF SAID
EQUIPMENT FOR THE PURPOSES AND USES OF LESSEE, OR ANY OTHER REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LESSOR
FURTHER DISCLAIMS ANY LIABILITY FOR LOSS, DAMAGE OR INJURY TO LESSEE OR THIRD
PARTIES AS A RESULT OF ANY DEFECTS, LATENT OR OTHERWISE, IN THE EQUIPMENT
WHETHER ARISING FROM THE APPLICATION OF THE LAWS OF STRICT LIABILITY OR
OTHERWISE. If the Equipment is not properly installed, does not operate as
represented or warranted by the Vendor and/or Manufacturer, or is unsatisfactory
for any reason, Lessee shall make any claim on account thereof solely against
the Vendor and/or Manufacturer and shall, nevertheless, pay Lessor all Lease
Payments under the Lease and shall not set up against Lessee's obligations any
such claims as a defense, counterclaim, set-off or otherwise. So long as Lessee
is not in breach or default of this Agreement or any Lease hereunder, Lessor
hereby assigns to Lessee, solely for the purpose of making and prosecuting any
such claim, any rights which Lessor may have against the Vendor and/or
Manufacturer for breach of warranty or other representation respecting any item
of the Equipment. All proceeds of any warranty recovery by Lessee from the
Vendor and/or Manufacturer of any item of the Equipment shall first be used to
repair or replace the affected item.
LESSEE ACKNOWLEDGES THAT NEITHER THE VENDOR NOR ANY SALESPERSON, EMPLOYEE,
REPRESENTATIVE OR AGENT OF THE VENDOR AND/OR MANUFACTURER IS AN AGENT OR
REPRESENTATIVE OF LESSOR, AND THAT NONE OF THE ABOVE IS AUTHORIZED TO WAIVE OR
ALTER ANY TERM, PROVISION OR CONDITION OF THIS AGREEMENT OR ANY LEASE HEREUNDER,
OR MAKE ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THIS AGREEMENT, ANY LEASE
HEREUNDER OR THE EQUIPMENT LEASED HEREUNDER. Lessee further acknowledges and
agrees that Lessee, in executing this Agreement and each Lease