EXHIBIT 10.63
HEWLETT-PACKARD FINANCING AGREEMENT
Financing Agreement No. MA002216
Lessee: Nhancement Technologies Inc.
Lessor hereby agrees to finance for Lessee and Lessee hereby agrees to finance
with Lessor, subject to the terms of this Financing Agreement ("Agreement"), the
personal property together with all attachments, replacements, parts,
substitutions, additions, software licenses, repairs, support, consulting, and
accessories incorporated/affixed, whether or not provided by Hewlett-Packard
("Product") described in any Lessor Product Schedule ("Schedule") executed by
the parties pursuant to this Agreement.
1. Non-Cancelable. This Agreement shall be effective as of the date of
execution by both parties. THIS AGREEMENT AND ANY SCHEDULES EXECUTED
HEREUNDER CANNOT BE CANCELLED OR TERMINATED EXCEPT AS EXPRESSLY PROVIDED
HEREIN.
2. Rent; Acceptance of Product. Lessee shall pay to Lessor for use of the
Product during the initial and any renewal term of any Schedule, the
payment amount specified on said Schedule ("Rent"). Lessee's acceptance
will be presumed unless Lessee demonstrates within 14 days after delivery
that the Product is not acceptable. Lessor reserves the right to charge
interest on any balance which exceeds 30 days past due. Rent shall begin to
accrue upon delivery and acceptance of Product ("Rent Commencement Date").
Rent shall accrue whether or not Lessee has received notice that such
payment is due.
3. Taxes; Insurance. Lessee agrees to pay to Lessor, when due, all license
fees, assessments, sales, use, personal property, excise, and other taxes
except for taxes based on Lessor's income, now or hereafter imposed on the
Product or the possession, operation of use thereof. Lessee shall obtain
and maintain liability insurance and insurance against loss or damage to
the Product. Upon request, Lessee shall furnish to Lessor a Certificate of
Insurance or other evidence of insurance coverage.
4. Loss or Damage. Lessee shall bear the entire risk of loss or damage to the
Product from any cause whatsoever from the date of delivery until it is
returned and received by Lessor. Lessee shall promptly notify Lessor of any
loss or damage. No loss or damage shall relieve Lessee of the obligation to
pay Rent or perform any other obligation hereunder. In the event of loss or
damage, Lessee, at Lessor's option, shall either place the Product in good
condition and repair or pay Lessor the buyout option price set out in the
applicable Schedule.
5. Intellectual Property Rights. Unless otherwise stated in writing by Lessor,
Lessor copyrighted material (software and printed documentation) may not be
copied except for archival purposes, to replace a defective copy or for
program error verification. If Lessor's software license is included in
product, then Lessor's standard software terms shall apply. Lessor will
defend or settle any claim against Lessee that an HP Product or Support
delivered under this Agreement infringes a patent, utility model,
industrial design, copyright, mask work or trademark in the country where
Lessee used the HP Product or receives Support, provided Lessee: (i)
promptly notifies Lessor in writing of the claim; and (ii) cooperates with
Lessor in, and grants Lessor sole authority to control the defense and
settlement and any costs and damages finally awarded by a court against
Lessee. If such a claim is made, Lessor may procure the right for Lessee to
continue using the HP Product, may modify the Product or replace it. If use
of the HP Product is enjoined by a court and Lessor determines that none of
these alternatives is reasonably available, Lessor will take back the HP
Product and refund its depreciated value if a purchase option has been
exercised. Lessor has no obligation for any claim of infringement arising
from: (i) Lessor's compliance with any designs, specifications or
instructions of Lessee; (ii) modification of the HP Product by Lessee or a
third party; (iii) use of the HP Product in a way not specified by Lessor;
or (iv) use of the HP Product with Non-HP products not supplied by Lessor.
These terms state the entire liability of Lessor for claims of
infringement.
6. Identification; Personal Property. If Lessee is in compliance with the
terms of this Agreement and applicable Schedules, Lessee shall have quiet
enjoyment of the Product. No other right, title or interest shall pass to
Lessee. Lessor, at its own expense, may require markings to be affixed to
or placed on the Product to give notice of Lessor's ownership thereof. Both
parties hereby confirm their intent that the Product shall always remain
and be deemed personal property even though said Product may hereafter
become attached or affixed to real property.
7. Use; Relocation; Assignment. Lessee will operate the Product in accordance
with manufacturer's manuals and instructions, by competent and duly
qualified personnel only, in accordance with applicable governmental
regulations, if any, and for business, medical, scientific, or commercial
purposes only, and not for person use. Lessee agrees not to sell, assign,
sublet, hypothecate or otherwise encumber or suffer a lien upon or against
any interest in this Agreement, any Schedule hereunder, or the Product.
Lessee agrees not to alter the Product or remove the Product from its
original location without Lessor's prior written consent. Relocation by
Lessor's support personnel shall not constitute Lessor's consent.
8. Support; Repairs. If Lessee finances Support provided by Lessor the term of
the financed support is non-cancelable. Lessee acknowledges that the
finance period and Support period may not correspond. If no order for
Support is made, Lessee, at its own costs and expense, shall keep the
Product in good repair, condition and working order.
9. Warranty. For HP Product, Lessee shall have the benefit of applicable
manufacturer's warranties which are normally furnished to purchasers of
identical product manufactured by HP. THIS WARRANTY IS EXCLUSIVE AND NO
OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED OR IMPLIED. LESSOR
SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE.
10. Non-HP Product; Non-HP Vendor. Lessee acknowledges that is has selected the
Vendor and Product supplied by Vendor. LESSOR MAKES NO WARRANTY EXPRESS OR
IMPLIED WHATSOEVER WITH RESPECT TO VENDOR'S PRODCUT, AND AS TO LESSOR,
LESSEE ACQUIRES THE PRODUCT "AS IS". If Vendor's Product is unsatisfactory
for any reason, Lessee shall make any claim on account thereof solely
against Vendor and shall, nevertheless, pay Lessor all payments due under
the Agreement. It is Lessee's sole responsibility to acquire updates or
other necessary documentation to Vendor's Product. If Lessee should forfeit
any rights granted to Lessee, or if Vendor terminates any rights granted to
Lessee, payment shall continue uninterrupted to Lessor. Lessee agrees that
it will not assert any defenses, deduction, abatement, counterclaim or
set-off against Lessor. Lessee understands and agrees that neither Vendor
not any employee, agent, or representative of Vendor is an agent of Lessor.
No agent of Vendor is authorized to waive or alter any terms or conditions
of this Agreement, and no representations as to the Vendor's Product or any
other matter by Vendor shall in any way affect Lessee's obligations under
this Agreement.
11. Return of Product. Upon expiration or termination, Lessee, at its own risk
and expense, shall have the Product packed for shipment in accordance with
manufacturer's specifications and shall immediately return the Product to
Lessor in the same condition as when delivered, ordinary wear and tear
excepted, freight prepaid and insured, to Lessor's remarketing facility.
12. Limitation of Liability. Lessor will be liable for damage to tangible
property per incident up to the greater of $300,000 or the actual charges
paid to Lessor for the Product that is the subject of the claim, and for
damages for bodily injury or death, to the extent that all such damages are
determined by a court of competent jurisdiction to have been directly
caused by a defective Product financed hereunder. Lessor will not be liable
for performance delays or for non-performance, due to causes beyond its
reasonable control. For any material breach of Support services by HP,
Lessee's remedy and Lessor's liability will be limited to a refund of the
related Support charges paid during the period of breach, up to a maximum
of 12 months. THE REMEDIES PROVIDED HEREIN ARE LEESSEE'S SOLE AND EXLUSIVE
REMEDIES. IN NO EVENT SHALL LESSOR BE LIABLE FOR LOSS OF DATA OR FOR
DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOST
PROFIT), OR OTHER DAMAGE WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL
THEORY.
13. Events of Default; Remedies. If Lessee fails to pay Rent when due and fails
to cure such breach within ten (10) days of notice of same, or in the event
of any other breach of this Agreement, any Schedule hereunder, or any other
Agreement between the parties hereto, or if any credit or other information
submitted to Lessor is false or misleading in any material respect, or in
the event of any act of insolvency or bankruptcy by or against Lessee,
Lessor may, it its option, exercise any one or more of the following
remedies: (i) declare all sums due and to become due as immediately due and
payable; (ii) enter upon the premises where the Product is located and take
immediate possession of and remove the same; (iii) sell any or all of the
Product at public or private sale or otherwise dispose of , hold, use or
lease to others said Product; (iv) exercise any other right or remedy which
may be available to Lessor under applicable law, including the right to
recover damages for the breach hereof. No remedy
referred to herein is intended to be exclusive but each shall be cumulative
and in addition to any of the remedies referred to above or otherwise
available to Lessor at law or in equity. No express or implied waiver by
Lessor of any default should constitute a waiver of any other default or a
waiver of any of Lessor's rights. If any action is brought by either party
to enforce this Agreement or to protect its interest in the Product, the
losing party agrees to pay the costs thereof including reasonable
attorneys' fees and other costs of collection.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California. Nothing herein shall
be deemed to preclude or prevent Lessor from bringing any action or claim
to enforce the provisions of this Agreement in any appropriate state or
forum.
15. Financing Statements. Lessee hereby grants and Lessor reserves a Purchase
Money Security Interest in the product financed hereunder and any proceeds
thereof. Lessee hereby nominates and appoints Lessor as its
attorney-in-fact for the sole purpose of executing on Lessee's behalf
financing statements (and any appropriate amendments thereto) under the
provisions of the Uniform Commercial Code for protective purposes, related
to this Agreement and any Schedule hereunder.
16. Miscellaneous. (a) This Agreement, together with any Schedules hereunder,
and any referenced addenda, exhibits or attachments shall constitute the
entire understanding between the parties and supersedes any previous
communications, representations, or agreements, whether oral or written;
(b) any notice or demands made hereunder shall be in writing and by regular
mail or facsimile; (c) No change or modification of any term or condition
hereof shall be valid unless made in writing and signed by an authorized
representative of each party; (d) Any provision of this Agreement which is
unenforceable in any jurisdiction shall as to that jurisdiction only be
ineffective to the extent of such unenforceability without invalidating the
remaining provisions hereof.
LESSOR: LESSEE:
Hewlett-Packard Company NHANCEMENT TECHNOLOGIES INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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(Authorized Signature) (Authorized Signature)
▇▇▇▇ ▇. ▇▇▇▇; Financing Service
Representative ▇▇▇▇ ▇. ▇▇▇▇▇▇; CFO & General Counsel
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(Name/Title) (Name/Title)