S Cube Ergonomics Private Limited (“S Cube”) rents to Customer and Customer rents from S Cube the Humanscale Products ergonomic tools (“Humanscale Products”) listed in the invoice (“Invoice”) as per the Rental Agreement set forth herein (“Agreement”). All Humanscale Products is rented “AS-IS”, except as to any limited warranties set forth below or otherwise provided in writing by S Cube.
- NATURE OF AGREEMENT: Customer and S Cube agree that the Agreement is expressly for the rental of Humanscale Products and is not a purchase, hire-purchase, sale, or rent-to-own or a financing agreement.
- RENTAL TERM, EXTENSION, AND TERMINATION: The rental term begins on the date Humanscale Products is installed at the Customer location and ends on the date on which the said Humanscale Products is un-installed/taken back from the customer location, subject to the ninety (90) day minimum initial Rental Term. In the event the Customer terminates this Agreement during the Rental Term, the Customer would be liable to pay the Rental Fee for the entire Rental Term. Each party shall have an option to terminate this Agreement with 15 days prior notice. Any extension of the Term or early termination of the Term shall be done only through the S Cube website and such extension or early termination shall be deemed to be pursuant to this Agreement.
- SECURITY DEPOSIT: The Customer shall pay an interest-free refundable security deposit of two months’ Monthly Rental Fee, at the time of placing the rental request online. This deposit shall be returned to the Customer upon termination of this Agreement, subject to the option of S Cube applying it against rental charges, if any, due and damages if any to Humanscale Product. Any amounts refundable to the Customer shall be paid within 10-15 days from the date Humanscale Products is uninstalled from the Customer location by S Cube. S Cube shall refund the Security Deposit to the account from which initial the Security Deposit was paid by the Customer. In case the Customer wishes to get the refund to any other account, the Customer shall provide the details of the account to S Cube via e-mail from the registered e-mail address of the Customer prior to the pickup of the Humanscale Products by S Cube. The same account details shall be confirmed at the time of the un-installation of Humanscale Products from the Customer’s location. In case any damage is found in the Humanscale Products, S Cube shall have the right to deduct the charges for the damages or monthly dues from the Security Deposit paid by the Customer and shall refund the remaining amount to the Customer. In case of default in the payment of monthly rentals (including late fee), S Cube shall have the right to deduct such rental dues and late fees from the Security Deposit and may at its sole discretion refund or forfeit the remaining balance of the Security Deposit. The Customer shall not request the monthly invoice dues to be adjusted from the Security Deposit.
- RENT: CUSTOMER’S OBLIGATIONS ARE NON-CANCELABLE: Customer shall pay S Cube each month during the Rental Term the Monthly Rental Fee in Indian Rupees as shown on the Invoice together with all applicable taxes and cesses imposed thereon as specified on the Invoice. The Monthly Rental Fee shall be due and collected at the beginning week of each month through auto-debit from the Customer’s bank account/credit card or such other. CUSTOMER AGREES THAT ITS OBLIGATIONS TO PAY MONTHLY RENTALS AND TO PERFORM ALL OTHER OBLIGATIONS HEREUNDER SHALL BE ABSOLUTE, IRREVOCABLE, UNCONDITIONAL AND INDEPENDENT AND SHALL BE PAID AND PERFORMED WITHOUT ABATEMENT, DEDUCTION OR OFFSET OF ANY KIND OR NATURE WHATSOEVER. The customer agrees that it shall keep adequate funds and/or adequate credit limit in the bank account or debit card or credit card to fund the Rent. Any failure in receiving payment by S Cube due to a shortage of funds in the Customer’s bank account or credit card would amount to default and S Cube shall be entitled to immediately terminate the contract and seek the return of Humanscale Products installed at the Customer’s location. Any delay in paying the Monthly Rental Fee beyond the date mentioned in the Invoice shall attract a late fee of Rs INR [250 (Two Hundred Fifty Only) per month for each Humanscale Product in respect of which the delay occurs].
- DEFAULT AND REMEDIES: Upon any default by Customer of any of its payment obligations or other obligations, or if Customer files or has filed against it any petition or proceeding under any bankruptcy, reorganization, insolvency or similar law, or becomes insolvent, dissolves, ceases business or is generally not paying its debts as the same become due, or if any Humanscale Products is levied against, seized or attached, or if Customer is in default under any other agreement with S Cube, S Cube shall have the right to exercise any one or more of the following remedies which are cumulative and not alternative: (a) terminate the Agreement and recover possession of the Humanscale Products; (b) recover all Monthly Rental Fees then due and unpaid and all future Monthly Rental Fees (when due) until the Humanscale Products is returned to S Cube; (c) demand that Customer return, and Customer shall return, all Humanscale Products in good operating condition, provided that if Customer fails to return all Humanscale Products within 5 days of S Cube’ demand, Customer shall be obligated to pay to S Cube, immediately, a sum of cash equal to the replacement value of any Humanscale Products not returned to S Cube; and (d) such other rights and remedies as are available to S Cube under applicable law. S Cube shall be entitled to all costs and expenses (including legal fees and costs) incurred by S Cube in enforcing any of the terms or provisions of the Agreement.
- DELIVERY, INSTALLATION & RETURN: All Humanscale Products requested by the Customer will be delivered by S Cube using a delivery service company. Post-delivery or at the time of delivery a technician will be sent by S Cube for installation of Humanscale Products at the Customer location. In case the Customer is unavailable at the time of delivery the Customer shall appoint a representative (give an authorization letter) for taking delivery of the Products and the same shall be communicated to S Cube prior to the delivery. The representative shall provide a copy of his/her ID proof and an authorization letter from the Customer to the delivery personnel assigned by S Cube. In case the Customer is not present or has not assigned a representative for taking delivery, at the location and a second delivery attempt is required. Upon such repeated delivery attempts, S Cube shall charge additional delivery costs to the Customer. S Cube shall inspect the quality and ensure that the Products are working and in usable condition before the delivery of the Products to the Customer. The Customer or its appointed representative shall inspect the Products for any damage and quality during the time of delivery. In case any Product is damaged during transit or unfit for use, S Cube shall replace the same at its own cost and in case a replacement is not required, such damage shall be noted in the delivery receipt and a photo of the same shall be taken for record. If Customer has any objection to the suitability of any Humanscale Products or its acceptability, Customer shall notify S Cube in writing of Customer’s specific objections within 72 hours. The Customer shall ensure the entry of delivery vehicle inside the premises where the delivery location is situated and ensure that prior permission is obtained for the use of the elevator of the building, for delivery of the Products to the location. The customer shall return the Humanscale Products in good operating condition to S Cube at the end of the Rental Term. Humanscale Products shall be (i) in the same condition as when delivered to S Cube reasonable wear and tear excepted (ii) without the need for repair or rehabilitation, and (iii) free and clear of all liens and encumbrances. The Customer shall raise a return request with S Cube on its website. Once a return request has been raised and any rental fee dues are cleared, the technician will be sent by S Cube for the un-installation of Humanscale Products from the Customer location. Irrespective of any other provision hereof, the Customer will bear the risk of damage to or loss of the Humanscale Products from fire, the elements, and all other causes from the date of installation until the Humanscale Products is uninstalled by S Cube. In the event Humanscale Products is stolen or damaged beyond repair, the Customer shall be liable to pay S Cube the market price of the Product. Minor scratches and chipping (depending on size) shall be considered as normal wear and tear. Apart from the above, the extent of damage shall be ascertained by comparing against the quality control document signed by the Customer at the time of delivery and the photographs taken on delivery and return pickup day. S Cube shall ascertain the extent of the damage and applicable penalty for such damage at the time of the un-installation of Humanscale Products from the Customer. In the event, it is found that in any product, any substandard parts are used, or repair carried out by any person not authorized by S Cube, then a penalty may be levied as per the policy of S Cube. Any removal, alteration, disfiguring, or cover up any numbers, lettering, or insignia displayed on any Humanscale Products shall be considered as damage to the product and shall be chargeable against the Customer. A damage claim report shall be sent to the Customer’s registered e-mail address and the same shall be deducted from the interest-free refundable security.
- LIMITED WARRANTY; EXCLUSIVE REMEDY; EXCLUSION OF WARRANTIES: The sole and exclusive warranty made by S Cube is the LIMITED WARRANTY that each item of Humanscale Products, when installed at the Customer prescribed location, will be in good operating condition. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR FAILURE OF ANY HUMANSCALE PRODUCTS TO CONFORM TO SUCH LIMITED WARRANTY SHALL BE THAT S CUBE, AT ITS ELECTION, MAY (1) REPAIR OR REPLACE ANY ITEM OF HUMANSCALE PRODUCTS THAT IS NOT IN GOOD OPERATING CONDITION WHEN INSTALLED OR (2) TERMINATE THIS AGREEMENT WITHOUT ANY LIABILITY TO CUSTOMER. THE FOREGOING LIMITED WARRANTY AND REMEDY ARE THE EXCLUSIVE WARRANTY AND REMEDY AND APPLY ONLY TO THE HUMANSCALE PRODUCTS AND ARE IN LIEU OF ANY ORAL REPRESENTATION AND ALL OTHER WARRANTIES AND REMEDIES, WHETHER IMPLIED OR STATUTORY OR BY CUSTOM, ARE EXCLUDED TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. OTHER THAN THE FOREGOING LIMITED WARRANTY, S CUBE HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER WHATSOEVER INCLUDING, WITHOUT LIMITATION, THE DESIGN COMPLIANCE WITH SPECIFICATIONS, OPERATION, OR CONDITION OF ANY HUMANSCALE PRODUCTS, THE MERCHANTABILITY OR FITNESS OF ANY HUMANSCALE PRODUCTS FOR A PARTICULAR PURPOSE. IT IS FURTHER AGREED THAT S CUBE SHALL HAVE NO LIABILITY TO CUSTOMER, OR THE CUSTOMERS/CONSULTANTS/EMPLOYEES/AFFILIATES OF CUSTOMER, OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES BASED ON STRICT OR ABSOLUTE TORT LIABILITY, OR S CUBE’ NEGLIGENCE OR OTHERWISE. Without prejudice to the foregoing, in no event shall S Cube’ aggregate liability arising at any time under this Agreement exceed one Month’s Rental Fee payable by the Customer under this Agreement.
- OWNERSHIP; PERSONAL PROPERTY; USE: The Humanscale Products shall remain the property of S Cube and S Cube retains the title thereto. Customer shall keep the Humanscale Products free from all claims, liens, security interests, and encumbrances. Customer shall use the Humanscale Products only at the Customer location on which the Humanscale Products is installed by S Cube and it shall not remove, transfer, alter or modify any item of Humanscale Products without S Cube’ prior written consent. Any movement of Humanscale Products would amount to Default. S Cube may inspect the Humanscale Products at any time with reasonable notice. further, S Cube will be entitled to conduct bi-annual maintenance and inspection of the Humanscale Products. In case the Customer is operating from any tax incentive zone such as under the Software Technology Parks of India Scheme, 100% Export Oriented Unit Scheme, Special Economic Zone Scheme, etc., it shall ensure that the Humanscale Products is not ‘customs or excise bonded’ and subject to the encumbrance of the relevant Government authorities.
- RELOCATION OF HUMANSCALE PRODUCTS: S Cube offers Humanscale Products on rental in Bangalore, Chennai, Hyderabad, Pune, Mumbai, Ahmedabad & Delhi. A Customer who has rented the Humanscale Products from S Cube has an option to request for relocation of the Humanscale Products within the same city or to any other cities as listed above. Such relocation would be at an additional fee of INR 1000 per instance for relocations within the same city.
- ASSIGNMENT AND WAIVERS: THIS AGREEMENT AND ALL RIGHTS OF S CUBE HEREUNDER AND TO THE HUMANSCALE PRODUCTS SHALL BE ASSIGNABLE BY S CUBE WITHOUT CUSTOMER’S CONSENT. In the event of any such assignment of this Agreement, S Cube’ assignee shall have all of the rights, privileges, entitlements, powers, and remedies of S Cube hereunder including the right to receive payment. Customer waives and agrees not to assert against S Cube’ assignee any defense, claim, counterclaim, setoff or recoupment that Customer may have against S Cube, whether arising under this Agreement or otherwise. The customer acknowledges and agrees that any assignment by S Cube will neither materially change Customer’s duties or obligations under this Agreement nor materially increase the burdens or risks imposed on Customer. The customer agrees to provide any such assignee with such documentation as S Cube or any such assignee may reasonably request confirming Customer’s absolute and unconditional obligations hereunder. CUSTOMER SHALL NOT ASSIGN OR GRANT A SECURITY INTEREST IN THE HUMANSCALE PRODUCTS, THIS AGREEMENT OR ITS INTERESTS HEREUNDER OR ENTER INTO ANY SUB-LEASE WITH RESPECT TO THE HUMANSCALE PRODUCTS. No permitted assignment, security interest, or sublease shall relieve Customer of any obligations hereunder.
- MAINTENANCE: If any defect or discrepancy is detected in the Humanscale Products at any time during the course of the Rental, Customer shall notify S Cube by telephone to its Customer Care Center at [+91-6366568563] or by mail to [[email protected]] and S Cube undertakes hereby, at its election, to repair the Humanscale Products or substitute the defective Humanscale Products at its own cost. In such cases Customer shall not be allowed to stop making payments of Rental if repair or substitution of defective Humanscale Products is made in less than 5 days after the above-mentioned notification is made. In the event that any item of Humanscale Products requires repair as a result of an accident of Customer’s negligence, misuse, or abuse of such items, the Customer shall bear the entire cost of the repair/replacement thereof. IN NO EVENT WILL S CUBE BE LIABLE FOR ANY DAMAGE OR LOSS TO CUSTOMER’S RESULTING FROM S CUBE’ MAINTENANCE, REPAIR OR REPLACEMENT OF THE HUMANSCALE PRODUCTS.
- HUMANSCALE PRODUCTS OPERATION: Customer shall cause the Humanscale Products to be operated in accordance with the applicable manual of instructions provided by S Cube and its personnel at the time of installation. In the event any Humanscale Products needs non-routine adjustment or repair, the Customer shall promptly notify S Cube in writing.
- INDEMNIFICATION OF S CUBE: Customer shall indemnify and hold harmless S Cube, its officers, directors, agents and employees and its/their respective parent companies, successors, assigns and legal representatives (collectively referred to as the “Indemnified Parties”) and, if so requested by S Cube, defend Indemnified Parties against all claims (Claims) directly or indirectly arising out of or in connection with this Agreement. Claims refer to all losses, liabilities, damages, penalties, expenses (including legal fees and costs), claims, actions, and suits, whether in contract or in tort, whether caused by S Cube’ negligence or otherwise, and whether based on a theory of strict liability of S Cube or otherwise, and includes, but is not limited to, matters regarding (a) the ownership, delivery, rentals, possession, maintenance, use, condition, return or operation of the Humanscale Products; (b) any latent defects or other defects in any Humanscale Products, whether or not discoverable by S Cube or by Customer; (c) any patent, trademark, or copyright infringement; and (d) the condition of any Humanscale Products arising or existing during Customer’s use. This indemnity shall survive any expiration or earlier termination of this Agreement.
- COMPLIANCE WITH LAWS: Customer agrees that it will comply with all applicable laws, ordinances, regulations, rules, and codes and will obtain and keep current all the permissions, no objections, licenses, and/or clearances, if any, applicable for the performance of its obligations under this Agreement.
- GOVERNING LAW AND JURISDICTION: In case no settlement to disputes can be reached through amicable negotiation by both Parties, the disputes shall then be submitted for arbitration to be conducted under the (Indian) Arbitration and Conciliation Act, 1996 by a sole arbitrator appointed by S Cube. The arbitration will take place in Bangalore, India in the English language. The decision of the arbitrators/ shall be binding on the parties. The referral to arbitration under this clause shall not apply (i) for the collection of amounts not paid when due by the Customer, or (ii) for the repossession by S Cube of the Humanscale Products whenever the Customer fails to return it when obliged to do so. Thus, for such purposes, S Cube shall file legal actions against the Customer before the courts of Bangalore, India. Further, subject to the provisions of this clause, Customer agrees that S Cube shall be entitled to the issuance of injunctive relief by any court of competent jurisdiction enjoining any breach or threatened breach of the covenants herein and for any other relief such court deems appropriate. This right shall be in addition to any other remedy available to S Cube. The arbitration fees shall be borne by the losing party except otherwise awarded by the arbitration commission. To the fullest extent permitted by law, this arbitration proceeding and the arbitrator’s award shall be maintained in confidence by the parties so as to protect relevant confidential information and intellectual property rights. Notwithstanding any reference to arbitration, both Parties shall continue to perform their respective obligations under the Agreement except for those matters in disputes and under arbitration.
- NO AGENCY: Nothing in this Agreement shall have the effect of creating a joint venture between the Parties or the creation of a principal-agency relationship. The parties have contracted to this Agreement strictly on a principal to principal basis.
- SEVERABILITY: In the event of any provision of this Agreement being held or becomes invalid, unenforceable or illegal for any reason, this Agreement shall remain otherwise in full force apart from the said provision, which will be replaced with a legally valid provision that most nearly reflects the same purpose as that of the deleted provision.
THIS AGREEMENT IS AN ‘ELECTRONIC RECORD’ AS CONTEMPLATED UNDER SECTION 2(T) OF THE INFORMATION TECHNOLOGY ACT, 2000 AND THE RULES THEREUNDER. THIS AGREEMENT BEING AN ELECTRONIC RECORD ARE GENERATED BY A COMPUTER SYSTEM AND DO NOT REQUIRE ANY PHYSICAL OR DIGITAL SIGNATURES.