41-65-Minutes for Meeting January 06,1982 Recorded 1/28/1982BE IT REMEMBERED, that at a regular meeting of the County Commissioners
~ield'this 6th day of January, 1982, with all three Commissioners pr
sgqr~t
the following business was transacted as noted from December 17, 1 1(„
through January 6, 1982.
IN THE MATTER OF
Claims Against the Count
At this time the Board approved claims
attached sheets.
A JAN281982
V0, L 41 _~nsE,,,
against the Count~ESQ "E
LOUNTY 10K
IN THE MATTER OF
Installment Payment Agreement and Service A reement III:
At t is time _the Boar approve an Installment Payment Agreement and
Service Agreement III between Deschutes County and International Business f'
Machines Corp. ILI
IN THE MATTER OF
A Resolution Establishing an
prest Cash Account for the HandlCng-
Minor Disbursements: '
At this time the Board approved a Resolution Establishing an Imprest
Cash Account for the Handling of Minor Disbursements for Deschutes County
Family Counseling Clinic, Resolution #81-085.
IN THE MATTER OF
A Resolution Authorizing the Purchase of Surplus Property by an Agent of
Deschutes County:
At this time the Board adopted a Resolution authorizing:'Cer"tain.County
Personnel to Purchase Surplus Property.
IN THE MATTER OF
A Resolution In the Matter of Issuance of Industrial Development Revenue
Bonds:
At this time the Board approved a Resolution In the Matter of Issuance
of Industrial Development Revenue Bonds by the State of Oregon to
Oregon Equipment Company, Resolution #81-086.
IN THE MATTER OF
Declaration of Dedication:
At t is time the Boar accented a Declaration of Dedication from
Kenneth Yegge.
IN THE MATTER OF
Bargain and Sale Deed:
At this time the Board approved a Bargain and Sale Deed granted to
Clifford G. and Virginia I. Williams.
IN THE MATTER OF
Cooperative Improvement Agreement
At this time the Board approved a Cooperative Improvement for Prelimin-
ary Engineering and Construction Finance between Deschutes County and the
City of Redmond and the State of Oregon and Northwest Commercial Inc.
IN THE MATTER OF
An Order Providing for the Temporary Use of Propert :
At this time the Board approved an Order Providing for the Temporary
Use of Property for a Home Occupation for Richard C. Rowe, Order #81-373.
JANUARY 6, 1982 JOURNAL: PAGE 1 OF 3
IN THE MATTER OF
An Order Approvi.
'Fire Protection
VOL 41 FACE ~F
the Annexation of Territory to Deschutes County Rural
stir
At this time the Board approved an Order approving the Annexation
of Territory to Deschutes County Rural Fire Protection District #2,
Order #81-369.
IN THE MATTER OF
An Ordinance Adopting the Deschutes County Subdivision/Partition Ordin-
ance:
At this time the Board approved an Ordinance Adopting the Deschutes
County Subdivision/Partition Ordinance, Ordinance #81-043.
IN THE MATTER OF
A Modification to the Community Mental Health Program Agreement:
At t is time t Fe Boar approve a Modification to the Community Mental
Health Program Agreement, Modification #4.
IN THE MATTER OF
A Modification to the Contract for Community Mental Health Services:
At t is time the Boar Approve a Modification to the Contract or Com-
munity Mental Health Services, Modification #3.
IN THE MATTER OF
An Order to Establish Westridge Avenue, L
view Street and Pine Hollow
In Westrid e Subdivision:
At this time the Board approved an Order to Establish Westridge Ave-
nue, Longview Street and Pine Hollow In Westridge Subdivision, Order
#82-003.
IN THE MATTER OF
An Order Approving the Annexation of Territory to Cloverdale Rural Fire
protection District and Notice o Fina Hearin :
At this time the Boar approve an Order Approving the Annexation of
Territory to Cloverday Rural Fire Protection District and Notice of Final
Hearing, Order #82-005.
IN THE MATTER OF
Transmission Site Lease Agreement:
At this time the Boar approved a Transmission Site Lease Agreement
between Deschutes County and KXIQ-Capps Broadcasting Group, Inc. for an
FM Radio Broadcast Transmission site on Awbrey Butte.
IN THE MATTER OF
Transmission Site Lease Agreement:
At this time the Boar approved a Transmission Site Lease Agreement
Between Deschutes County and Associated Oregon Loggers, Inc., for a
radio transmission site on Awbrey Butte.
IN THE MATTER OF
An Order to Establish Public Roads within Deschutes Count as County Roads:
At this time the Board approved an Order to Establish Banff Drive,
Calgary Drive, 0algary Lane,"tdmonton Drive, `.Jasper Place, k'imberly Court,
Medicine Hat Lane, Okanagan Lane, Quebec Court, Quebec Drive, Saskatoon
Lane, Stirling Drive, Sweetgrass Drive, Sweetgrass Lane, Vancouver Lane,
Victoria Lane, Yukon Lane, Public Roads within Deschutes County as County
Roads, Order #82-004.
JANUARY 6, 1932 JOURNAL: PAGE 2 OF 3
DESCHUTES COUNTY BOARD OF COMMISSIONERS
Clay C. Shepar , Chairman
--17 1
/ss
JANUARY 6, 1982 JOURNAL: PAGE 3 OF 3
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c = . (State and Local Gorrin"t" T
Fiscal Year From U to m 9-- 0 7
~ i aJ tJ i.
Length of Installment Payment Plan to
MONTHS ROSEMARY PATTERSON
DESCHUT COUNTY CLERK
This Installment Payment Agreement supplements and amends the Purchase Agreement, dated , G ec f1
19 between INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) and the Customer w' h V pe to the
IBM Machines and/or their model upgrades and features (hereinafter called machines) on that Agreement.
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(1)
(J)
(K)
(L)
Cash Price (Purchase Price from Purchase Agreement) ►
Trade-in Credit (from Purchase Agreement) ►
Purchase Option Credits (from Purchase Agreement) ►
( Iv
Cash Down Payment ❑Time of Installation ❑ Effective Date of Purchase ►
6-
Total Down Payment (B + C + D) ►
2
Unpaid Balance of Cash Price (A-E) ►
State and Local Taxes (if applicable) ►
Amount Financed/Unpaid Balance (F+G) ►
Time Price Differential - FINANCE CHARGE on Amount Financed ►
(A)
(B)
(C)
(D)
(E)
(F)
(G)
(H)
(1)
at an ANNUAL PERCENTAGE RATE of ►1 %1 `
Tax on Time Price Differential (if applicable) ►
p
Total Payments (H + I + J) ►
Deferred Payment Price (A + G + 1) ►
I zf
Installment Payments to be made as follows:
(Select One)
(J)
(K)
(L)
❑ Monthly Option - First Installment Payment (Monthly Installment Payment Amount+J) $ -
- Successive Monthly Installment Payments a
Annual Option
Fiscal Period Installment Payments
1
2
3
4
5
6
EACH
NOTE
FIRST INSTALLMENT PAYMENT INCLUDES
TAX ON TIME PRICE DIFFERENTIAL.
TIME PRICE DIFFERENTIAL BEGINS TO
ACCRUE 30 DAYS PRIOR TO THE FIRST
INSTALLMENT PAYMENT.
THE TERMS AND CONDITIONS ON THE REVERSE SIDE ARE A PART OF THIS AGREEMENT
NOTICE TO BUYER
1 Under the law, you are entitled to a completely filled in exact copy of this Agreement at the time you sign. Keep it to protect your legal rights.
2. Under the law, you have the right to pay off in advance the full amount due and to obtain a partial refund of the FINANCE CHARGE based on the "Actuarial Method".
3. IBM reserves a purchase money security interest in each of the machines listed herein. These interests will be satisfied by payment in full. A copy of this Agreement may be filed
on IBM's behalf with appropriate state authorities at any time after a signature by the Customer as a financing statement in order to perfect IBM's security interest.
4. If one of the events of default.described on the reverse side of this document should occur, and if IBM should then exercise its right to declare all unpaid installments to be
immediately due and payable, you will have the right to a full refund of any part of the FINANCE CHARGE as yet unaccrued at the time of such declaration by IBM. In such a
case, your refund will be computed under the "Actuarial Method".
THE BUYER ACKNOWLEDGES RECEIPT OF A TRUE COPY OF THIS AGREEMENT(THIS IS A RETAIL INSTALLMENT CONTRACT)
THIS INSTALLMENT PAYMENT AGREEMENT AND THE PURCHASE AGREEMENT REFERRED TO HEREIN CONSTITUTE A SINGLE AGREEMENT AND THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE BUYER AND IBM, WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR
WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE BUYER ACKNOWLEDGES
THAT THE BUYER HAS READ THIS AGREEMENT. UNDERSTANDS IT, AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS, AND BY BUYER'S SIGNATURE ON
THIS AGREEMENT ACKNOWLEDGES THAT BUYER IS LEGALLY AUTHORIZED TO ENTER INTO THIS AGREEMENT. THE BUYER ACKNOWLEDGES RECEIPT OF A TRUE
COPY HEREOF AND OF THE PURCHASE AGREEMENT REFERRED TO HEREIN. n
Custom
's ( yer's) Name
International
Business Machines Corporation
Ad
City and
Zip Code
Please Type o
r Print all information except signature
17 1U)
Branch Office Address
Br. Off. No.
Mark F
(Attention Of)
City fate
Zip Code
y u
s Signature)
Date
97 6
By (I Representativ ' i
a r
Date
Sigr%d B
y - (Print Name)
Signed
int Title)
1
Page 1 of 2
z 140 21 wh,,8 _
IBIM 3RANCH OFFICE COPY
&alg
INSTALLMENT PA
(State and Lori
vto fir,; :.TERMS AND
ACCEPTANCE
Acceptance of this Agreement by IBM is contingent upon the absence of any mathematical error or
deviation from IBM's current prices. Unless the Buyer is advised to the contrary within 30 days after
the signing of this Agreement, this Agreement is accepted by IBM as written and is in full force and
effect on Ihe.date signed by IBM.
PAYMENT
The Customer promises to pay: ,
(1) the Cash Down Payment in full, and
(2) the Installment Payments until fully paid, all as shown on the first page of this Agreement.
The Cash Down Payment will be due as follows.
J11 for other than the purchase of installed leased or rented machines onthe Date of
Installation; or
(2) for the purchase of installed leased or rented machines on the Effective Date of Purchase.
The First Installment :Payment will be due on the 1st day of the second month following the
Installation Date or Effective Dale of Purchase.
If Customer selects the Monthly Option, successive Installment Payments will be due on the lst day
.of each month following the due date for the First Installment Payment. If Customer selects the
Annual Option, successive Installment Payments are due on the first day of succeeding fiscal
periods
The Customer having been offered the choice of purchasing at the Cash Price (less 'any credit for
trade-in equipment or purchase option accruals) plus applicable State and Local taxes or at-the
Deferred Payment Price has elected to purchase at such Deferred Payment Price.
The Customer may at any time pay in advance the full amount due hereunder and the Time Price
Differential will be adjusted by IBM to reflect the shorter payment period.
All remittances are to be made to the IBM Branch Office Address shown on the Installment Payment
Record, which will be mailed to the Customer by, IBM.
ASSIGNMENTS
This Installment Payment Agreement is not assignable by the Customer, nor may the Customer sell,
transfer, relocate, or dispose of the machines, or any of them, without prior written permission of
IBM. In no event may the machines be relocated outside the United States. Any attempted assignment
a or transfer by the Customer of any of the rights, duties or obligations of this Installment Payment
Agreement is void...„
CUSTOMER'S COVENANTS
The Customer agrees that: (a) it will not create, assume, or voluntarily suffer to exist, without giving
IBM at least 15 calendar days' prior written notice, any mortgage, pledge, encumbrance, security
interest, lien, or charge of any kind upon the machines, or any of them; (b) it will keep the machines
in good repair and operating condition; (c) it will pay promptly all taxes and other charges when levied
or assessed upon the machines, or their operation or use, or upon IBM in connection with this
Installment Payment Agreement (exclusive of taxes based on net income); and (d) it will promptly
satisfy all liens against the machines. _
The Customer further agrees to procure and maintain file insurance with extended coverage against
loss, theft, damage to or destruction of the machines for the full insurable value thereof for the
duration of this Installment Payment Agreement, the policy for such insurance being endorsed to
show loss payable to IBM and assigns as respective interests may appear; Upon request a certificate
of such insurance will be furnished to IBM or assigns. Any proceeds received directly by IBM under
such insurance shall be credited to the payment required from the Customer pursuant to the Section
entitled "Destruction of Machines.':
DESTRUCTION OF MACHINES
In the event that any of the machines shall be lost, stolen, irreparably damaged or destroyed or
otherwise rendered permanently unfit for use from any cause whatsoever (such occurrences being
hereinafter called Casualty Occurrences) prior to the payment in full of the Total Installment Payment
Price, to the extent permitted bylaw the Customer shall promptly pay to IBM a sum equal to the
aggregate Casualty Value of such machines. Any money so paid shall be applied, on the installment
dale next following receipt by IBM of such payment, to reduce installments thereafter falling due so
that such installments represent only the payments due for the remaining machines.
The Casualty Value of each machine suffering a Casualty Occurrence shall be the sum of the balances
of unpaid Installment Payments and Time Price Differential unpaid at the time of such Casualty
Occurrence and attributed to such machine, such Time Price Differential being adjusted by IBM to
reflect the shorter payment period.
DEFAULTS a
Any one or more of the following are events of default: (a) the Customer shall fail to Day in full any
sum payable by the Customer when due hereunder following IBM's written notice of such. failure,
except as provided for in the Section titled "Funding"; (b) the Customer shall fail to obtain insurance
as required in this Installment Payment Agreement, (c) the Customer shall, for more than 30 days
after IBM shall have demanded in writing performance or observance thereof, failed to comply with
any other term of this Installment Payment Agreement; (d) any insolvency proceedings of any
character, voluntary or involuntary, shall be instituted by or against the Customer, or (e) the
Customer shall make an assignment for the benefit of creditors. - -
YMENT AGREEMENT
:al Government)
CONDITIONS
.
REMEDIES
If an event of default shall have occurred, 18M or assigns may, to the extent permitted bylaw, (a)
recover the balance of amounts due hereunder; (b) enter any premises where the machines mjy be
and take possession of them. or render them unusable, and retain all prior payments a; partial
compensation for their use and depreciation; (c) if Customer has failed to keep the machines in good
repair and operating condition, restore the machines to good repair and operating condition at
Customer's expense :for actual time and materials cxpended by IBM at IBM's then current charges: (dY
sell the machines. after at least 15.days' notice before the date of any intended public sale or the date '
after which any private sale or other disposition of the machines is to be made, with or without the
machines at the sale. at which sale IBM or assigns may purchase the machines; (e),incur attorney's
..tees and legal expenses in exercising any of its;righis and remedies:upon default which the'yWomer -
agrees to pay; and/or (f) pursue any other remedy permitted by law or in equity. e.:
9- k,
Waiver of any default shall not be a waiver, of any other defaull;.all of IBM 5,right3 hereunder are -
cumulative and not alternative.
FUNDING
Since the Customer intends. fo request the appropriation of funds penodreally to he paid tar, the
machines, if funds are riot appropriated for the Customer. for such installment Payments for any
future Fiscal Period, the Customer will not be obligated to pay the-remainder of-the Total Installment
Payment Price due beyond'the end of the then current.Fiscal Period. Such event.will not consTityte an
event of default. The Customer agrees to notify IBM in writing of suchnonappropriation at fhe•eartiest
possible time. A
In the event that funds are not appropriated as provided above and the Customer rs u'nable to make
further payments due under this Installment Payment Agreement beyond the end of the then current
Fiscal Period. IBM will, within a reasonable time after the end of such Period, enter and take the
machines from the Customer's premises and will retain all sums, previously paid by Customer to IBM
as partial compensation for machine use and depreciation; provided, however. that upon Customer's -
request, Customer may, prior to such repossession, retain,the machines during a. reasonable period
agreed to by IBM at a monthly charge designated by IBM., beginning on the first day following theTast
Fiscal Period for which. paymerill 0s _ been made hereunder) '
ANY HOLDER OF THIS CONTRACT IS SUBJECT TO ALL CLAIMS AND
DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE
SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO
OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE
DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR
HEREUNDER.
.,LOCATION OF MACHINES -
y-~
The machines shall remain personal property, not become part at the freehold, and be kept at the
Customer's address shown on the face. of this Agreement where IBM may inspect them at any
reasonable time. _ -
Until payment infull of the Deferred Payment Price due hereunder, the Customer may not sell.
transfer, substantially modify, relocate or dispose of the machines; or any of them; without. prior -
written permission of IBM, nor may the machines be relocated outside the United States.
GENERAL
If the unit price or trade-in credit for any machine is adjusted as provided for in the Purchase
Agreement referred to herein, the payments herein agreed to be paid shall be adjusted and this
Installment Payment Agreement shall be amended accordingly.
The terms and conditions of,this Installment Payment Agreement shall prevail notwithstanding any
variance with the terms and conditions of the Purchase Agreement referred to herein.
Should this Installment Payment Agreement and/or the Purchase Agreement referred to herein be
held by the courts to be invalid or unenforceable, in whole or in part, the parties agree that the
machines shall be deemed to have been installed pursuant to the termsand conditions of IBM's State
and Local Government Lease Plan at IBM's applicable State and Local Government Lease Plan
Monthly Charges, commencing with the Date of Installation or the Effective Date of PurOIASe of the
machines. For the period prior to such holding, IBM shall credit to the applicable Lease Plan Monthly
Charges the amounts paid by the Customer to IBM under this Installment Payment Agreement and
amounts paid by the Customer for: maintenance, property taxes and insurance. Any ekeess credits
shall be refunded to the Customer,, and any deficiency shall be dde to JVM;,brll in no event shall any
amount be -due to IBM in excess of funds appropriated
:rte
- ;Rrid+a3, -
R' Page 2 of 2
Z 140-2186-2 (61e0)
UW 025 4
Z,40-W8s-°-1/W
rAGF SUPPLY AGREEMENT
41 83
TERMS AND CONDITIONS
ACCEPTANCE
Customer agrees to purchase and International Business Machines
Corporation (IBM) by its acceptance of this Agreement, agrees to sell,
on the following terms and conditions, the Supplies shown on the
first page of this Agreement. Acceptance of this Agreement is
contingent upon (1) a satisfactory credit report on Customer, and (2)
with regard to the dollar amounts stated herein, the absence of any
mathematical error or deviation from IBM's standard prices. Unless
the Customer is advised to the contrary within 15 days after the
Customer's signing of this Agreement, this Agreement is accepted by
IBM as written on the date signed by IBM. The date on which the
Customer signs this Agreement, if subsequently accepted by IBM,
will be the Effective Date.
TITLE
Title to Supplies under this Agreement will pass to Customer on the
date of shipment from IBM.
SECURITY INTEREST
IBM reserves a Security Interest in the Supplies listed herein or to be
ordered in the future under this Agreement in the amount of their
purchase price. These interests will be satisfied by payment in full. A
copy of this Agreement may be filed with appropriate State authori-
ties at any time after signature by Customer as a financing statement
in order to perfect IBM's Security Interest.
RISK OF LOSS
Customer assumes risk of loss or damage upon delivery of the
Supplies to the Customer.
TERM
Except as otherwise provided herein, this Agreement will remain in
force one year from the Effective Date and will then be automatically
renewed for annual period(s) unless terminated either by the Cus-
tomer on one month's written notice at any time, or by IBM on one
month's written notice prior to renewal.
CHARGES
The price of each Supply item will be the price as indicated on the
face of this Agreement and is determined by the Minimum Shipment
Quantity to a Single Location and the Bill at Quantity as indicated on
the face of this Agreement. If at the end of the current Agreement
period the Customer has not accepted delivery of at least the Bill at
Quantity, then IBM will bill and the Customer agrees to pay the
difference between IBM's prices for the total annual quantity
received, based on IBM's applicable price list, and the price as
invoiced. If the Customer requests delivery of Supplies at quantities
lower than the Minimum Shipment Quantity to a Single Location, IBM
will bill and the Customer agrees to pay the higher price for such
lower quantity based on IBM's applicable price list.
Transportation charges within the United States (including Puerto
Rico and the Canal Zone) are at IBM's expense.
Terms are net 30 days from date of invoice.
PRICE PROTECTION
Except as stated below, all prices charged will be IBM's applicable
established prices in effect on the Effective Date of this Agreement. A
price quoted on the face of this Agreement for Copy Paper, Copy
Offset Masters and Copy Transparancies will be firm for 30 days,
after which the prices charged for such items will be the prices in
effect on the date shipped from IBM.
If this Agreement is automatically renewed, IBM's applicable
established prices and terms and conditions in effect on the renewal
date shall apply for the renewal period.
If IBM's applicable established price upon the shipment date.of any
Supply under this Agreement shall be lower than the price for such
Supply stated in this agreement, the Customer shall have the benefit
of such lower price.
TAXES
In addition to the charges due under this Agreement, the Customer
agrees to pay amounts equal to any taxes resulting from this
Agreement, or any activities hereunder, exclusive of taxes based
SUBSTITUTIONS/ADDITIONS/DELETIONS
If at any time Customer forecasts purchasing an increased quantity
of Supplies, IBM, at Customer's request, will terminate this Agree-
ment and negotiate a new Agreement specifying the increased
quantity of Supplies and the applicable price.
At any time IBM may delete or substitute any Supply item listed
herein. If such deletion or substitution results in Customer using a
reduced amount of Supply items, IBM will not increase the applicable
price for such Supply items during the then current term of the
Agreement.
DEFAULT
If Customer defaults hereunder or if a petition in bankruptcy is filed
by or against Customer:
1. IBM, in addition to other remedies, may repossess any Supplies
which were previously delivered hereunder and for which payment
has not been received;
2. IBM may refuse to make further shipments of Supplies; and
3. Customer agrees to pay IBM's cost and expenses of collection
and/or repossession, including the maximum attorney's fee
permitted by law, said fee not to exceed 25% of the amount due
hereunder.
LIMITED WARRANTY/REMEDY
IBM warrants the Supplies to the original purchaser to be free from
defects in material and workmanship at the time of delivery.
Purchaser's exclusive remedy for breach of the limited warranty is
repair or replacement of the defective Supplies provided that Pur-
chaser returns said defective Supplies to the nearest IBM Office
Products Branch Office listed in the telephone directory in the United
States, Puerto Rico or the Canal Zone within one year after delivery.
IBM's liability to the Customer for any cause whatsoever, and
regardless of the form of action, whether in contract or in tort
including negligence, shall be limited to actual damages up to an
amount equal to the greater of the purchase price of the items
causing the damage or $1000. Under no circumstances will IBM be
liable for any lost profits, incidential or consequential damages
arising out of the use of or inability to use the supplies, even if IBM
has been advised of the possibility of such damages. The foregoing
limitation of remedy will not apply to the payment of cost and damage
awards for personal injury or damage to real property or tangible
personal property caused by IBM's negligence.
NO OTHER WARRANTIES, EXPRESSOR IMPLIED, INCLUDING THE
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PAR-
TICULAR PURPOSE WILL APPLY TO THE SUPPLIES.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN
IMPLIED WARRANTY LASTS, OR THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS
WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY
ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO
STATE.
GENERAL
Subject to the terms of the following paragraph, IBM may modify the
terms and conditions of this Agreement effective on the renewal date
by providing the Customer with prior written notice.
Any such modification will apply unless the Customer exercises the
option to terminate this Agreement or withdraw the individual
Supply items affected by such modification. Otherwise, this Agree
ment can only be modified by a written agreement duly signed by
persons authorized to sign agreements on behalf of the Customer
and IBM (an authorized IBM Manager) and variance from the terms
and conditions of this Agreement in any customer order or other
written modification will be of no effect.
Either party may terminate this Agreement for failure of the other to
comply with any of its terms and conditions.
No action, regardless of form, arising out of this Agreement may be
brought by either party more than two years after the cause of action
has arisen, or, in the case of non payment, more than two years from
the date of the last payment.
This Agreement will be governed by the laws of the State of New
caphy Al PA Purchase Agre r en
r--MACHINE DESCRIPWINO
Sequence: Machine Type, Product, Style, Size, Pitch, Typestyle, Keyboard,
Destination
Quantity
Quantity
(Mike, Headset, Control, Panel Color forIPE),COlorand Motor. List All Devices
'
M
hi
X
Qty,
r
And Fonts.
Charge
Per
X
Destination
ac
ne
Price
Machine
Type/Model
Feature
if machine is now installed and in the possession of the Customer under a
Machine
Charge'
Price
lease or rental agreement, indicate the serial number.
6't6 6Z
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Supply Kits: ❑ 12/12 ❑ 18118 ❑ Other
I
I
Destination Charge ('Subject to Change)
I.
Purchase Price (Excluding applicable taxes and Destination Charges`)
For The Purchase of Installed Leased or Ren ed Machines:
Effective Date of Purchase 17 Meter Count c{~ N&C.N!ish 101i! alm
(A)
(B)
Trade-In/ Eauioment (Follow seauence described 'above)
Qty.
DESCRIPTION
Include any deduction due to machine condition
Serial Number
Destination
Charge'
Allowance
(Excluding Destination Charge)
I
I
I
I
I
I
I
I
Destination Charge ('Subject to Change)
`r^
❑ Trade7ln Purchase Option Credits
Sub-Total
(B-D)
0
State and Local Taxes
0
Destination Charge (Subject to Change)
(A + C)
0
Advance Payment Received
NET AMOUNT
(E+F+G-H)
~
$ry,
THE TERMS AND CONDITIONS ON THE REVERSE AND ATTACHED ARE A PART OF THIS AGREEMENT
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE
CUSTOMER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS,
ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
Cust 's Name
International Business Machines Corporation
Addre 5
Citya ate
Zip Code
Please T
ype or Print all information except signature
Branch Office Address
Br. Off. No.
Mark For (Attention Of)
City and State
Zip C,
B is t
Date
0
Illr
By (IBM Representative's gnature)
Date
Sig d By - (Print Name) igne By - (Print Title)
7
Servict'AZlfreement I (Fdf.Electdc Tv&writers agtd Irl it Processina Enuioment Only)
M
Lf0XZ BE 10
HINE
Number of
Basic Annual
Guaranteed Annual
Inspection Desired
Zone Charge
f A
li
l
on Automatic Service Ian
ype/Model
Feature
Machines
Service Charge
Per Unit
YeslNo
Charge
pp
e
I
cab
Per Unit
I
I
❑ Customer Agrees to Purchase
.
nNITIA LSI
❑ Regular Plan
❑ Automatic Service Plan
I
I
❑ Customer Declines......
INI TIAL51•
TERMS AND CONDITIONS ON ATTACHMENT
Service Agreement II and X ❑ Service Agreement Signed
Supply Agreement
❑ SA 11 ❑ Customer Declines..........
I
❑ Supply Agreement Signed
I
NITIAL51
❑ SA III ❑ Customer Accepts on Installation........
IINITIALaI
❑ Customer Declines
Z 140-2164-02 (6/80) C~ Page 1 of 3
U/M 50
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VIE 4i FAGE 85
PURCHASE AGREEMENT TERMS & CONDITIONS
Customer agrees to purchase and International Business Machines Corporation (IBM) by its
acceptance of this Agreement, agrees to sell, on the following terms and conditions, the machines
shown on the first page of this Agreement. Under these terms and conditions, IBM will, (1) sell
machines to the Customer, and (2) provide Warranty service, and (3) as available, furnish
programming and programming services, all as described herein. The Customer agrees to accept the
machines, Warranty service, programmingand programming services under the terms and conditions
of this Agreement. The Customer further agrees with respect to the machines and programming to
accept the responsibility for (1) their selection to achieve the Customer's intended results, (2) their
use and (3) the results obtained therefrom. The Customer also has the responsibility for the selection
and use of, and results obtained from, any other equipment, programs or services used with the
machines and programming.
Acceptance of this Agreement by IBM is contingent upon (1) a satisfactory credit report on the
Customer and (2) with regard to the dollar amounts shown on the first page of this Agreement, the
absence of any mathematical error or deviation from IBM's current prices. Unless the Customer is
advised to the contrary within 30 days after the signing of this Agreement, this Agreement is
accepted by IBM as written and is in full force and effect from the date signed by IBM.
The term "machines' as used in this Agreement refers to machines and/or their model upgrades
and features unless the context requires individual reference to model upgrades and features.
PAYMENT
The Customer agrees to pay the Purchase Price less any applicable Trade-In Credit as shown on the
first page of this Agreement.
Payment will be made as specified in the invoice, unless otherwise provided for in an installment
payment agreement between IBM and the Customer.
Except for the purchase of installed leased or rented machines:
This Agreement must be signed by the Customer and accepted by IBM on or before the Date of
Installation of the machines.
For the purchase of installed leased or rented machines:
The prices stated herein are exclusive of any charges which are due or may become due from the
Customer under any IBM lease or rental agreement relating to the machines.
The Effective Date of Purchase shall be the later of the Effective Date of Purchase stated on the
first page of this Agreement or the date on which this Agreement, signed by the Customer, isl
received by IBM. The machines will be terminated under the applicable IBM lease or rental'
agreement between IBM and the Customer as of the day immediately preceding the Effective'
Date of Purchase.
In addition to the prices shown on the first page of this Agreement, the Customer agrees to pay
amounts equal to any taxes resulting from this Agreement, or any activities hereunder, exclusive of
taxes based on net income. Any personal property taxes assessable on the machines after delivery
to the carrier shall be borne by the Customer, except that any such taxes assessable on purchase of
installed leased or rented machines on or after the Effective Date of Purchase shall be borne by the
Customer.
DESTINATION CHARGES
All Destination Charges for each machine, model change or feature, and any rigging charges,
including those charges related to any equipment being traded-In, will be paid by the Customer in
accordance with IBM's then current shipping and billing practice.
TITLE
Except for purchase of installed leased or rented machines, title to each machine passes to the
Customer on the date of shipment from IBM, or on the date this Agreement is signed by IBM,
provided that such Agreement is accepted by IBM, whichever is later.
For purchase of installed leased or rented machines, title to each machine passes on the Effective
Date of Purchase.
SECURITY INTEREST
IBM reserves a purchase money security interest in each of the machines listed herein in the amount
of its Purchase Price. These interests will be satisfied by payment in full unless otherwise provided
for in an IBM installment payment agreement. A copy of this Agreement may be filed on IBM's behalf
with appropriate state authorities at any time after a signature by the Customer as a financing
statement in order to perfect IBM's security interest. Such filing does not constitute acceptance of
this Agreement by IBM.
TRADE-IN ALLOWANCE CREDIT
The Customer agrees to make available to IBM the trade-in equipment listed on the first page of this
Agreement prior to or upon the Date of Installation of machines ordered hereunder. IBM may reduce
the Trade-In Allowance Credit and increase the Net Amount shown on the first page of this Agreement if
any trade-in equipment, when received by IBM or its authorized agent, is not in substantially the same
condition as when inspected.
The Trade-In Allowance Credit may not be reduced, other than for equipment condition, unless
written notice shall have been given to the Customer at least three months before the date of
installation of the machines ordered hereunder.
The Customer certifies that the Customer is the true owner and that IBM will receive the trade-in
equipment free from any encumbrances.
Title to the trade-in equipment and risk of loss will remain in the Customer until physical delivery to
IBM or its authorized agent, at which time title will be deemed to pass.
The Trade-In Allowance Credit will be issued promptly after passage of title of the trade-in equipment
to IBM and upon installation of the on-order machines. The credit will be applied only as part
payment of the Purchase Price of the on-order machines or against sums due or to become due to
IBM.
TRADE-IN EQUIPMENT DESTINATION CHARGES
All destination, packaging and rigging charges for trade-in equipment other than Electric Typewriters
and Input Processing Equipment are the responsibility of the Customer.
RISK OF LOSS OR DAMAGE
The Customer assumes risk of loss nr danage upon delivery of the machines to the Customer, or the
Effective Date of Purchase f6r installed leased or rented machines.
SHIPMENT (Except for the purchase of installed leased or rented machines)
IBM agrees to schedule each machine for shipment in accordance with IBM's applicable shipment
sequence and will confirm and amend, as necessary, the Customer's schedule. Prior to shipment,
IBM will make reasonable accommodation to a delay requested by the Customer.
ORDER CERTIFICATION
If IBM requires the signing by the Customer of an Order Certification for IBM Machines for any of the
Page 2 of 3
Z 140-2164-2 (6/80)
lachines covered by this Agreement, such Order Certification, along with any associated
upplement to Order Certification for IBM Machines signed by the Customer, is hereby incorporated
I and made a part of this Agreement.
RICE PROTECTION PERIOD
or Electric Typewriters and Input Processing Equipment not yet installed, IBM may not increase the
rices from the date on which this Agreement is signed by the Customer and IBM to the originally
cheduled shipping date (this period will at no time exceed twelve months).
or machines other than Electric Typewriters and Input Processing Equipment not yet installed,
rices of the machines stated herein shall not be subject to any established price increase from the
ate on which this Agreement is signed by the Customer and IBM unless written notice shall have
een given to the Customer at least three months before the date of shipment.
or purchase of installed leased or rented machines, unless protected by a valid quotation, prices
re subjectto change until the Effective Date of Purchasewithin the limits set forth in the provisions
f any applicable IBM lease agreement.
IBM's established price for any machine upon the Date of Installation shall be lower than the price
)r such machine stated in this Agreement, the Customer shall have the benefit of such lower price.
ie Customer agrees to provide a suitable installation environment with all the facilities prescribed
IBM. Machines purchased under this Agreement shall be installed as specified by IBM.
:cept for purchase of installed leased or rented machines, the Date of Installation for a machine
!ing installed lexcept for Customer Set-Up machines) will be the day (Monday through Friday)
Ilowing the day that (1) the machine is installed as specified by IBM, or (2) the machine is
:livered to the Customer, if the Customer fails to provide a suitable installation environment, or
acts to delay installation. IBM will notify the Customer of the Date of Installation.
1STOMER SET-UP MACHINES
to Customer shall be responsible for set-up of Customer Set-Up (CSU) machines. A CSU machine
II be considered to be installed on the last day (Monday through Friday) of the CSU allowance
~riod for such machine, which commences on the day (Monday through Friday) following the date
receipt of the machine at the Customer's premises.
CSU feature or model conversion will be considered to be installed one month following the later of
i estimated date of shipment or its actual date of shipment from IBM.
)NFIGURATION CHANGES
r agreement between IBM and the Customer, changes in the configuration of machines described
rein may be made prior to the date of shipment. Such changes will be subject to prices and
lipping schedules in effect at time of change.
iditional features and model upgrades which are field installable may be ordered in writing by the
istomer under this Agreement, at any time after its acceptance by IBM, for installation in the
achines, subject to IBM's prices then generally in effect.
term "programming" as used in this Agreement shall mean such programming as IBM may make
(rally available, from time to time, without separate charge, for machines of the types ordered by
Customer under this Agreement. IBM will furnish such programming as may be requested by the
The term "programming services" shall mean such services as IBM may generally make available
Nithout separate charge in connection with programming. IBM will determine the programming
services available and their duration.
The terms "programming" and "programming services" do not include IBM programs and services
that are available for a separate charge or which are offered under separate written agreements.
LIMITED WARRANTIES
Machines purchased under this Agreement may be either newly manufactured by IBM from new and
serviceable used parts which are equivalent to new in performance in these machines. or assembled
by IBM from serviceable used parts, or machines which have been previously installed. IBM warrants
thateach machine will be in good working order on the daythat it is installed and that it will conform to
IBM's official published specifications.
The following Warranty Period will apply to the machines:
Except for the purchase of installed leased or rented machines, the Warranty Period for each
machine will be 90 days commencing upon the Date of Installation of such machines.
For the purchase of installed leased or rented machines, the Warranty Period for each machine
will be 90 days commencing upon the date the originally ordered machine was first installed on
rent or lease with the Customer.
I . SERVICE AND PARTS WARRANTY
IBM will provide Warranty service to keep in or restore to good working order each machine for 90
days from the Warranty commencement date at no additional charge to the Customer, except as set
forth in the Section entitled "Exclusions." This Warranty service includes preventive maintenance
based upon the specific needs of individual machines as determined by IBM and unscheduled,
on-call remedial maintenance. Warranty service will also include lubrication, adjustments, and re-
placement of parts deemed necessary by IBM. Parts will be furnished on an exchange basis, and the
replaced parts become the property of IBM. Warranty service provided under this Agreement does
not assure uninterrupted operation of the machines.
Commencing on the Date of Installation of an additional feature or model upgrade increment, IBM
will provide a 90 day Service and Parts Warranty for such feature or model upgrade increment.
During the Warranty Period, engineering changes, determined applicable by IBM, will be controlled
and installed by IBM on the machines. The Customer may, by providing notice subject to written
confirmation by IBM, elect to have only mandatory changes, as determined by IBM, installed on the
have full and free access to the machines to provide service thereon. The Customer shall
inform IBM of any change in the machine's location during the Warranty Period. Service
e scope of the Warranty will be furnished at IBM's time and material rates then generally in
If. ADDITIONAL WARRANTY PROVISIONS
IBM further warrants that programming designated by IBM for use with a machine and for which
programming services are available will conform to IBM's official published specifications when
shipped to the Customer if properly used on such machine. Thereafter, IBM will provide programming
services, subject to the provisions stated in the Section entitled "Programming.
IBM does not warrant that the functions contained in the programming will operate in the
combinations which may be selected for use by the Customer, or will meet the Customer's
requirements. `
ALL pROGU M W FOR WHICH NO PROGRAMII~IG SERVICES ARE AVAILABLE Is PATENT AND COPYRIGHT INDEMNITY.
VOL PAGE - .UU OR AN ")IS IS" BASIS WITHOUT WARRANTY. IBM will defend the Customer against a claim that machines or programming supplied hereunder
IBM tibes not warrant that the operation of the machine or programming will be uninterrupted or infringes a U.S. Patentor Copyright, or thatthe machines' operation pursuant to the current
unaltered
error free, or that all programming errors will be corrected. Operating Instructions provided by IBM for such machine and/or pursuant to a current release and
Ill. EXCLUSIONS modification level of any-programming supplied by IBM infringes a U.S. patent. IBM will pay resulting
l EXrLUSI s provided by IBM under the Agreement do not include: costs, damages and attorneys tees finally awarded provided that:
Il
The,wa
(a) repair of damage or increase in service time caused by failure to continually provide a suitable a) the Customer promptly notifies IBM in writing of the claim; and
installation environment with all facilities prescribed by IBM including, but not limited to, b) IBM has sole control of the defense and all related settlement negotiations.
adequate space, electrical power, air conditioning or humidity control; If such claim has occurred, or in IBM's opinion, is likely to occur, the Customer agrees to permit IBM,
(b) repair of damage or increase in service time caused by the use of the machines for other than at its option and expense either to procure for the Customer the right to continue using
the machines or
ordinary use for which designed; programming or to replace or modify the same so that they become non-infringing. If neither of the
(c1 maintenance service due to the use of supplies, including repair of damage, replacement of foregoing alternatives is reasonably available, the Customer agrees to return the machines
or
parts (due to other than normal wear) or repetitive service calls; programming on written request by IBM. IBM agrees to grant the Customer a credit for returned
machines as depreciated. The depreciation shall be an equal amount per year over the fife of the
(d) repair of damage or increase in service time caused by: accident; disaster, which shall include, machines as established by IBM.
but not be limited to, fire, flood, water, wind and lightning; transportation; neglect or misuse: IBM has no liability for any claim based upon the combination, operation or use of any
machines or
alterations, which shall include, but not be limited to, any deviation from IBM's physical, programming supplied hereunder with equipment or data not supplied by IBM, or with any program
mechanical or electrical machine design; attachments, which are defined as the mechanical, other than or in addition to programming supplied by IBM, if such claim would have been avoided
by
electrical or electronic interconnection to an IBM machine of non-IBM equipment and devices use of another program whether capable of performing the same or different function or result.
IBM
not supplied by IBM; or IBM machines, except those IBM machines which are owned by IBM, has no liability for any claim based upon alteration of the machines or modification of any
under the Service and Parts Warranty provision of an IBM purchase agreement or under an IBM programming supplied hereunder, if such claim would have been avoided by the absence of such
service agreement; alteration or modification,
(e) repair of damage or increase in service time caused by the conversion from one IBM model to The foregoing state the entire obligation of IBM with respectio infringement of patents
and copyrights.
another or the installation or removal of an IBM feature whenever any of the foregoing was LIMITATIONOF REMEDIES
performed by other than IBM. This exclusion shall apply only during the 90 days subsequent to the date of such machine modification; IBM's entire liability and the Customer's exclusive
remedy shall be as follows:
(f) additional service time and replacement parts associated with the installation by IBM of an In all situations involving performance ornon-performance of machines, model upgrades,
features or
engineering change when-such ack it onafservice and parts are required due to the coriversion programmingfurnished under this Agreement, the Customer's remedy is (1) the adjustment or
repair
from one IBM model to another or-the installation or removal of an IBM feature whenever any of of the machine, model upgrade or feature, or replacement of its parts by IBM, or, at IBM's
option,
the foregoing was performed by other than IBM; replacement of the machine, model upgrade orfeature, orcorrection of programming errors, or (2) if,
(g) furnishing supplies (as designated by IBM) or-accessories, painting or refinishing the machines after repeated efforts, IBM is unable to install the machine, model upgrade or feature
or a replacement
or furnishing material therefor, inspecting altered machines, making specification changes or machine, model upgrade orfeature in good working order, or to restore it to good working
order, or to
performing services connected with relocation of machines, or adding or removing accessories, make programming operate, all as warranted, the Customer shall be entitledto recover actual
damages
attachments or other devices; Ito the limits setforth in this Section. For any other claim concerning performance or non-performance
N electrical work external to the machines or maintenance of accessories, alterations, attach by IBM pursuant to, or in any other way related to the subject matter of, this Agreement
or any order
ment or other devices not furnished by IBM; under this Agreemient, the Customer shall be entitled to recover actual damages to the limits set forth
in this Section.
(i) such service which is impractical for IBM to render because of alterations in, or attachments to, IBM's liability for damagesto the Customer for any cause whatsoever, and regardless
of the form of
the machines; and action, whether in contract or in tort including negigence, shall be limited to the greater of $25,000 or
(j) providing Warranty service if the machine is located outside the United States, Puerto Rico; the purchase price stated herein for the specific machines that caused the damages or
that are the
Guam or the Canal Zone. subject matter of or are directly related to the cause of action. The foregoing limitation of liability will
WITH RESPECT TO PURCHASE OF INSTALLED LEASED OR RENTED MACHINES WHICH HAVE BEEN not apply to the payment of cost and damage awards referred to in the Section entitled "Patent and
INSTALLED FOR MORE THAN 90 DAYS, THE CUSTOMER AGREES TO PURCHASE THE MACHINES ON Copyright Indemnity," or to claims for personal injury caused solely by IBM's negligence.
AN "AS IS" BASIS WITHOUT WARRANTY. In no event will IBM be liable for any damages caused by the Customer's failure to perform the
IN NO EVENT WILL IBM BELIABLE FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES, Customer's responsibilities, or for any lost profits or other consequential damages; even if IBM has
EVEN IF IBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. been advised of the possibility of such damages, or for any claim against the Customer by any other
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, party, except as provided in the Section entitled "Patent and Copyright Indemnity."
EXCEPT AS TO CONSUMER GOODS IN WHICH CASE' THE IMPLIED WARRANTIES OF GENERAL
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE APPLY FOR THE PERIOD OF THE This Agreement is not assignable without the prior written consent of IBM. Any attempt to assign any
EXPRESS WARRANTIES. of the rights, duties or obligations of this Agreement without such consent is void.
PURCHASERS OF CONSUMER PRODUCTS SHOULD NOTE THAT SOME STATES DO NOT ALLOW FOR ThisAgreement can onlybe modified by a written agreement duly signedby persons authorized to sign
THE EXCLUSION OF CONSEQUENTIAL DAMAGES OR THE LIMITATION ON THE DURATION OF agreementson behalf of the Customer and of IBM (an authorized IBM Manager), and variance from the
IMPLIED WARRANTIES SO THE ABOVE EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE. terms an"Driclitions of this Agreement in any order or other written notification from the Customer,
THIS WARRANTY GIVES THE PURCHASER SPECIFIC LEGAL RIGHTS, AND THE PURCHASER MAY will be of neeffect. The term "this Agreement' as used herein includes any future written amendment
ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE. made in accordance herewith.
ALL INQUIRIES CONCERNING THE ABOVE WARRANTY AND/ORIBM'S PERFORMANCE THEREUNDER If the Customer defaults as to any obligation to return machines or fails to pay any amounts due
SHOULD BE ADDRESSED TO IBM AT ITS BRANCH OFFICE ADDRESS SHOWN ON THE FACE OF THIS hereunder, IBM, in addition to any other remedies, may repossess the machines without notice and
AGREEMENT. the Customer agrees to pay all costs and expenses of collection and/or repossession, including all
OTHER PRODUCTS AND SERVICES attorney's fees incurred, up to the maximum permitted by applicable state law.
All maintenance and other service activities (including but not limited to activities excluded from the If any provision or provisions of this Agreement shall be held to be invalid,
illegal or unenforceable, the
validity, legalit and enforceability of the remaining provisions shall not in any way be affected or
Warranties provided under this Agreement and those relating to pre-installation planning, inspections,
relocation of machines, engineering changes and altered programming) which may be made available impaired there y.
by IBM to the Customer at no additional charge or at IBM's then applicable time and material charges, No action, regardless of form, arising out of this Agreement may be brought by either
party more than
in connection with any machines or programming supplied under this Agreement shall be subject to two years after the cause of action has arisen, or, in the case of non-payment, more
than two years
the terms and conditions of this Agreement unless such activities are provided under another written from the date of the last payment.
agreement signed by IBM and the Customer. IBM is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond
In addition to the machines, programming and services provided under this Agreement, IBM offers its control.
other products and services at separate charges under applicable written IBM agreements. IBM and This Agreement will be governed by the laws of the State of New York.
the Customer agree that such products and services cannot be the subject of an oral agreement. The
Customer may contract with IBM for any such products or services as available, but only under the
terms and conditions of a written agreement signed by the Customer and IBM.
TRAVEL EXPENSE
There will be no charge for travel exppense associated with Warranty service or programming service
under this Agreement, except travel charges in those instances where the machine location is not
normally accessible by private automobile or scheduled public transportation or if the IBM Service
Representative is unable to travel to the machine location, perform regular service, and then travel to
IBM's nearest Branch Office or Point of Servicewithin IBM's normal business hours. In such instances
the Customer agrees to pay actual travel expense plus travel and waiting time at IBM's prevailing hourly
rate.
MAINTENANCE SERVICE AND PARTS
Following expiration of the applicable Warranty Period, IBM if requested will provide, at IBM's rates
and terms then in effect, maintenance sefVice and maintenance parts for the machines, as long as
such service and parts are generally available.
ENGINEERING CHANGES
IBM will, upon request, furnish to the Customer, at IBM's prices'then generally, in effect, such
engineering changes as IBM shall have available for sale and which may be suitable for use on, or m
connection with, the machines. IBM makes no representation that engineering changes which maybe
announced in the future will be suitable for use on, or in connection with, tlaos'e machines.
Page 3 of 3
Z 140-2164-2 (e/80)
ACCEPTANCE I
Acceptance of this Agreement by IBM is contingent upon the absence of any mathematical
errorand upon consistency with IBM's then current prices. Unless the Customer is advised
to the contrary within 30 days from the Customer's signing of this Agreement, this
Agreement is accepted by IBM as written and Is in full force and effect on the date signed
by IBM.
TERM
This Agreement will remain in force until the Renewal Month and will then be automatically
extended for annual period(s) until all machines have been withdrawn from service under
this Agreement.
For each machine there will be a Service Commencement Date which will be the day
following the expiration date of the Service and Parts Warranty provision of an IBM
Purchase Agreement or the Service Commencement Date as shown on the face of this
Agreement, whichever is later. Service for each machine will be provided from the Service
Commencement Date up to but not including the first day of the Renewal Month as shown
on the face of this Agreement, or the Customer's presently established Renewal Month if
the Customer elects to prorate. Thereafter, Service Availability for each machine will be
automatically extended for annual period(s), unless the machine is withdrawn from
service.
The Customer can terminate this Agreement or withdraw any machine from this Agreement
at any time with one month's prior written notice to IBM.
Except as otherwise provided herein, IBM may withdraw any machine from this Agreement
at any time following twelve months from the Service Commencement Date by providing
the Customer with one month's prior written notice.
SERVICE AVAILABILITY
IBM will provide service availability during IBM's normal business hours.while the machine
is located within the United States, Puerto Rico, Guam or the Canal Zone. This service to
keep the machine(s) in, or restore the machine(s) to, good working order includes
unscheduled, on-call remedial maintenance and preventive maintenance: (Inspectlonsy. '
Inspections may be performed during the course of the on-call remedial maintenance and `
are based upon the specific needs of the individual machine as determined by IBM.
Maintenance will include lubrication, adjustments and replacement of maintenance parts,
deemed necessary by IBM. Maintenance parts will normally be either new or equivalent to .
new in performance when installed in an IBM machine. If anew or equivalent to new part is
not available, and a used part is supplied, the Customer will be so advised. Maintenance
parts will be furnished on an exchange basis; and the replaced parts become the property
of IBM. Service provided under this Agreement does not assure uninterrupted operation of
the machine(s).
The Customer may purchases Guaranteed Annual Inspection by so indicating on the face
of this Agreement. The charge will be the charge then generally in effect on the latter of the
Commencement Date or Renewal Month of this Agreement. If- Guaranteed Annual
Inspection has been purchased and IBM fails to perform such inspection, the Customer
will be given a refund of the amount paid for such Guaranteed Annual Inspection.
CHARGES
The Customer agrees to pay a Basic Annual Service Charge as indicated on the face of this
Agreement.
Service Charges are subject to increase by IBM effective.on the Renewal Month with prior
written notice by IBM to the Customer.
If the Customer requests service to be performed at a time outside IBM's normal business
hours, there will be no additional charge for maintenance parts; however, the service, if
available, will be furnished at IBM's applicable hourly rates and terms then in effect.
When the distance from the Machine's Location to IBM's nearest Branch Office or Point of
Service is greater than 15 miles, the Customer agrees to pay IBM's then current Zone
Charges or travel charges. Travel charges will consist of actual travel expense plus travel.
and waiting time at IBM's prevailing hourly rate. Travel charges will also apply it the
machine location is not normally accessible by private automobile or scheduled public
transportation or if the IBM Service Representative is unable to travel to the machine
location, perform regular service, and then travel to IBM's nearest Branch Office or Point of
Service within IBM's normal business hours.
Changes in machine specifications may result in an adjustment of the Service Charge.
Such adjustment will become effective upon the installation of the specification change.
AUTOMATIC SERVICE AGREEMENT PROVISION, (Optional-see face at this Agreement)
Each machine subsequently purchased, the type of which is eligible for service under this
Agreement, will be automatically added to this Agreement. The Service Commencement
Date will be the day following the expiration date of the Service and Parts Warranty
provision of the applicable IBM Purchase Agreement.
The Service Charge and Zone Charge, if any, will be the lower of charges thenin effect on
the last Renewal Month for service under this Agreement Or the ch#rges in effect on the
Service Commencement Date for that machine.
TAXES
In addition to the charges due under this Agreement, the Customer agrees to pay amounts
equal to any taxes resulting from this Agreement, or any activities hereunder, exclusive of
taxes, based upon net income.
INVOICING
The Basic Annual Service Charge and Zone Charge, if any, will be invoiced in, advance.
Payment will be due as specified in the invoice. All other charges due hereunder are
payable as specified ir1 the invoice. The Basic Annual Service Charge and Zone Charge, if
any; for a partial month's service will be prorated on the basis of a 30-day month.
EXCLUSIONS
Service under this Agreement does not include:
(a) repair of damage or increase in service time caused by accident, misuse, disaster; or
abuse; or by accessories, alterations, attachments or other devices not furnished
by IBM;
(b) furnishing or repairing supplies or accessories (optional features); painting; or
refinishing the machines;
(c) making specification changes;
(d) maintenance service due to the use of supplies, including repair of damage,
replacement of parts (due to other than normal wear) or repetitive service calls;
(e) service of accessories, alterations; attachments, or other devices not furnished by
IBM;
(f) repairof damage or increase in service time caused by failure to continually provide a
suitable installation environment with all facilities prescribed by IBM including, but
not limited to, adequate space, electrical power, air conditioning or humidity control;
and
- -90100p-
"D-: CV iiUr r ww.
a
(g) additional service time and/or replacement parts due to condfiffons set forth in the
Sections "Access to Machines," "Engineering Changes - Installation and Control,"
and "Non-IBM Parts."
ACCESS TO MACHINES
IBM shall have full and free access to the machine(s) to provide service thereon.
If persons other than IBM representatives shall install model conversions or feature
additions or shall perform service on a machine, and as a result further repair by IBM is
required, such further repairs will be made at IBM's applicable time and material rates and
terms then in effect. If such additional repair is required, IBM may withdraw the machine
from this Agreement upon one month's prior written notice to the Customer following any
repetition of the need for additional repair of such machine caused by-non-IBM service
activity.
ENGINEERING CHANGES-INSTALLATION AND CONTROL
Engineering changes, determined applicable by IBM, will be controlled and installed by
IBM on machines covered by this Agreement. The Customer may, by providing notice
subject to written confirmation by IBM, elect to have only mandatory changes, as
determined by IBM, installed on machines so designated.
IBM reserves the right to charge, at its applicable time and material rates and terms then in
effect, for additional service time and replacement parts associated with the installation by
IBM of an engineering change when such additional service and parts are required due to
the conversion from one IBM model to another or the installation or removal of an IBM
feature whenever any of the foregoing was performed by other than IBM.
NON-IBM PARTS
Service provided by IBM under this Agreement does not include the replacement or
adjustment of parts which were not furnished for the.machine by IBM, or the time spent in
determining the need for replacement or adjustment of such parts, except for common
hardware items such as screws, nuts, bolts, clamps and commercially available parts such
as lightbulbs. IBM will replace, at the Customer's request and at IBM's applicable time and
material ratesand terms then in effect, maintenance parts which were not furnished for the
machine by IBM (except when such part is in an alteration) when such parts are directly
interchangeable with the IBM maintenance parts.
When IBM determines thata machine under this Agreement contains a part, not furnished
for the machine by IBM, which is particularly significant to IBM's ability to provide
maintenance service for such machine under this Agreement, IBM may withdraw the
machine from this Agreement upon one, month's prior written-notice to the Customer,
unless the Customer replaces the part with's directly interchangeable part furnished for the
machine by IBM. IBM will, at the Customer's request, replace such part with a'directly
interchangeable part at IBM's applicable time and material rates and terms then in effect.
DISCLAIMER AND LIMITATION OF LIABILITY
IBM's liability to the Customer for damages, from any cause whatsoever, and regardless of
the form of.action, whether in contract or in tort including negligence, shall be limitedao
actual damages up to a maximum of $10,D00 or twelve months Service Charges for the
specific machines under this Agreement that caused the damages or that are the subject
matter of or are directly related to the cause of action. The foregoing limitation of lability
will not apply to claims for personal injury or damage to real property or tangible personal
property caused by IBM's negligence.
IN NO EVENT WILL IBM BE LIABLE FOR LOST PROFITS OR OTHER CONSEOUENTIAL
DAMAGES EVEN IF IBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OR FOR ANY CLAIM AGAINST THE CUSTOMER BY ANY OTHER PARTY.
IBM DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS OF AN IMPLIED
WARRANTY OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUEN-
TIAL DAMAGES, SO THEABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO
YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO
HAVE OTHER RIGHTS WHICH MAY.VARY FROM:STATE TO STATE.
GENERAL'
Subject to the terms of the following paragraph, IBM may modify the terms and conditions
of this Agreement effective an the Renewal Montfrby providing the Customer with prior
written notice. -
Any such modification will apply unless the Customer exercises the option to terminate
this Agreement orwithdraw the machine(s) affected by such modification. Otherwise, this
Agreement can only be modified by a written agreement duly signed by persons authorized
to sign agreements on behalf of the Customer and of IBM (an authorized IBM Manager) and
varianoe.from the terms and conditions 6f this Agreement in any Customer.order or other
written modification will be of no effect.
The Customer represents that the Customer is the owner of the machine(s) under this
Agreement, or, if not the owner, has authority from the owner to include such machine(s)
'under this Agreement.
`this Agreement is not assignable: its rights, duties and obligations may not be assigned
or transferred by the Customer without the prior written consent of IBM. Any attempt to
assign or transfer any of the rights, duties or obligations of this Agreement without such
consent is void.
IBM's service provided outside the scope of this Agreement will be furnished at IBM's
applicable time and material rates and terms then in effect.
IBM is not responsible for failure to render service due to causes beyond its control
(including a claim of patent infringement, or action thereon, that may inhibit IBM's ability
to render service).
Either party may withdraw any machine or all machines from this Agreement for failure of
the other to comply with any of its terms and conditions.
No action, regardless of form, arising out of this Agreement may be brought by either party
more than two years after the cause of action has arisen, or, in the case of non-payment,
more than two years from the date of the last payment.
This Agreement will be governed by the laws of the State of New York.
41 .A,;f 87
Attachment
Z 140-2164-2 (6/80)
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DESCRIPTION
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THE TERMS AND CONDITIONS ON THE REVERSE AND ATTACHED ARE A PART OF THIS AGREEMENT
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE
CUSTOMER AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS,
ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
C s Name
International Business Machines Corporation
Address
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(INITIALS)
❑ SA X ❑ Customer Accepts on Installation........
(INITIALS)
❑ Customer Declines
Z 140-2164-02 (6180)
Ulm 50
Page 1 of 3
va 41 PAGE 88
;A)
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(C)
(D)
(E)
(F)
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(1)
IBM BRANCH OFFICE
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PURCHASE AGREEMENT TERMS & CONDITIONS
Customer agrees to purchase and International Business Machines Corporation (IBM) by its
acceptance of this Agreement, agrees to sell, on the following terms and conditions, the machines
shown on the first page of this Agreement. Under these terms and conditions, IBM will, (1) sell
machines to the Customer, and (2) provide Warranty service, and (3) as available, furnish
programming and programming services, all as described herein. The Customer agrees to accept the
machines. Warranty service. programmingand programming services under the terms and conditions
of this Agreement. The Customer further agrees with respect to the machines and programming to
accept the responsibility for (1) their selection to achieve the Customer's intended results, (2) then
use and (3) the results obtained therefrom. The Customer also has the responsibility for the selection
and use of, and results obtained from, any other equipment, programs or services used with the
machines and programming.
Acceptance of this Agreement by IBM is contingent upon (1) a satisfactory credit report on the
Customer and (2) with regard to the dollar amounts shown on the first page of this Agreement. the
absence of any mathematical error or deviation from IBM's current prices. Unless the Customer is
advised to the contrary within 30 days after the signing of this Agreement, this Agreement is
accepted by IBM as written and is in full force and effect from the date signed by IBM.
The term "machines" as used in this Agreement refers to machines and/or their model upgrades
and features unless the context requires individual reference to model upgrades and features.
PAYMENT
The Customer agrees to pay the Purchase Price less any applicable Trade-In Credit as shown on the
first page of this Agreement.
Payment will be made as specified in the invoice, unless otherwise provided for in an installment
payment agreement between IBM and the Customer.
Except for the purchase of installed leased or rented machines:
This Agreement must be signed by the Customer and accepted by IBM on or before the Date of
Installation of the machines.
For the purchase of installed leased or rented machines:
The prices stated herein are exclusive of any charges which are due or may become due from the
Customer under any IBM !ease or rental agreement relating to the machines.
The Effective Date of Purchase shall be the later of the Effective Date of Purchase stated on the
first page of this Agreement or the date on which this Agreement, signed by the Customer, is
received by IBM. The machines will be terminated under the applicable IBM lease or rental
agreement between IBM and the Customer as of the day immediately preceding the Effective
Date of Purchase.
In addition to the prices shown an the first page of this Agreement, the Customer agrees to pay
amounts equal to any taxes resulting from this Agreement, or any activities hereunder, exclusive of
taxes based on net income. Any personal property taxes assessable on the machines after delivery
to the carrier shall be borne by the Customer, except that any such taxes assessable on purchase of
installed leased or rented machines on or after the Effective Date of Purchase shall be borne by the
Customer.
DESTINATION CHARGES
All Destination Charges for each machine, model change or feature, and any rigging charges,
including those charges related to any equipment being traded-in, will be paid by the Customer in
accordance with IBM's then current shipping and billing practice.
TITLE
Except for purchase of installed leased nr rented machines, title to each machine passes to the
Customer on the date of shipment from IBM, or op. the date this Agreement is signed by IBM.
provided that such Agreement is accepted by IBM. whichever is later.
For purchase of installed leased or rented machines, title to each machine passes on the Effective
Date of Purchase.
SECURITY INTEREST
IBM reserves a purchase money security interest in each of the machines listed herein in the amount
of its Purchase Price. These interests will be satisfied by payment in full unless otherwise provided
for in an IBM installment payment agreement. A copy of this Agreement may be filed on IBM's behalf
with appropriate state authorities at any time after a signature by the Customer as a financing
statement in order to perfect IBM's security interest. Such filing does not constitute acceptance of
this Agreement by IBM.
TRADE-IN ALLOWANCE CREDIT
The Customer agrees to make available to IBM the trade-in equipment listed on the first page of this
Agreement prior to or upon the Date of Installation of machines ordered hereunder. IBM may reduce
the Trade-In Allowance Credit and increase the Net Amount shown on the first page of this Agreement it
any trade-in equipment, when received by IBM or its authorized agent, is not in substantially the same
condition as when inspected.
The Trade-In Allowance Credit may not be redgced, other than for equipment condition, unless
written notice shall have been given to the Customer at least three months before the date of
installation of the machines ordered hereunder.
The Customer certifies that the Customer is the true owner and that IBM will receive the trade-in
equipment free from any encumbrances.
Title to the trade-in equipment and risk of loss will remain in the Customer until physical delivery to
IBM or its authorized agent, at which time title will be deemed to pass.
The Trade-In Allowance Credit will be issued promptly after passage of title of the trade-in equipment
to IBM and upon installation of the on order machines. The credit will be applied only as pars
payment of the Purchase Price of the on-order machines or against sums due or to become due to
IBM.
TRADE-IN EQUIPMENT DESTINATION CHARGES
All destination. packaging and rigging charges for trade-in equipment other than Electric Typewriters
and Input Processing Equipment are the responsibility of the Customer.
RISK OF LOSS OR DAMAGE
The Customer assumes risk of loss or damage upon delivery of the machines to the Customer, or the
Effective Date of Purchase for installed leased or rented machines.
SHIPMENT !Eacept for the purchase of installed leased or rented machines)
IBM agrees to schedule each machine for shipment in accordance with IBM's applicable shipment
sequence and will confirm and amend, as necessary, the Customer's schedule. Prior to shipment.
IBM will nuke reasonable accommodation to a delay requested by the Customer.
-ORDER CERTIFICATION
M III ftrglwes try sKnangby the Customef of an Order Cerbisahon for IBM Machines for any of the
P, age 2*of 3
Z 140-2164-2 (d 80)
machines covered by this Agreement, such Order Certification, along with any associated
Supplement to Order Certification for IBM Machines signed by the Customer.'Is trefeby incorporated
in and made a part of this Agreement. _
PRICE PROTECTION PERIOD
For Electric Typewriters and Input Processing Equipment not yet installed, IBM may not increase the
prices from the date on which this Agreement is signed by the Customer and IBM to the originally
scheduled shipping date (this period will at no time exceed twelve months).
For machines other than Electric Typewriters and Input Processing Equipment not yet installed,
prices of the machines stated herein shall not be subject to any established price increase from the
date on which this Agreement is signed by the Customer and IBM unless written notice shall have
been given to the Customer at least three months before the date of shipment.
For purchase of installed leased or rented machines, unless protected by a valid quotation, prices
are subject to change until the Effective Date of Purchase within the limits set forth in the provisions
of any applicable IBM lease agreement.
If IBM's established price for any machine upon the Date of Installation shall be lower than the price
for such machine stated in this Agreement, the Customer shall have the benefit of such lower price.
INSTALLATION
The Customer agrees to provide a suitable installation environment with all the facilities prescribed
by IBM. Machines purchased under this Agreement shall be installed as specified by IBM.
Except for purchase of installed leased or rented machines, the Date of Installation for a machine
being installed (except for Customer Set-Up machines) will be the day (Mondayy through Friday)
following the day that (1) the machine is installed as specified by IBM, or (Z) the mactiine is
delivered to the Customer, if the Customer fails to provide a suitable installation environment, or
elects to delay installation. IBM will notify the Customer of the Date of Installation.
CUSTOMER SET-UP MACHINES
The Customer shall be responsible for set-up of Customer Set-Up (CSU) machines. A CSU machine
will be considered to be installed on the last day (Monday through Friday) of the LSU allowance
period for such machine, which commences on the day (Monday through Friday) following the date
of receipt of the machine at the Customer's premises.
A CSU feature or model conversion will be considered to be installed one month following the later of
is estimated date of shipment or its actual date of shipment from IBM.
CONFIGURATION CHANGES
By agreement between IBM and the Customer, changes in the configuration of machines described
herein may be made prior to the date of shipment. Such changes will be subject to prices and
shipping schedules in effect at time of change.
Additional features and model upgrades which are field installable may be ordered in writing by the
Customer under this Agreement, at any time after its acceptance by IBM, for installation in the
machines, subject to IBM's prices then generally in effect.
term "programming" as used in this Agreement shall mean such programming as IBM may make
wally available, from time to time, without separate charge, for machines of the types ordered by
Customer under this Agreement. IBM will furnish such programming as may be requested by the
The term "programming services" shall mean such services as IBM may generally make available
without separate charge in connection with programming. IBM will determine the programming
services available and their duration.
The terms "programming" and "programming services" do not include IBM programs and services
!hat are available for a separate charge or which are offered under separate written agreements.
LIMITED WARRANTIES
Machines purchased under this Agreement may be either newly manufactured by IBM from new and
serviceable used parts which are equivalent to new in performance in these machines, or assembled
by IBM from serviceable used parts, or machines which have been previously installed. IBM warrants
that each machine will be in good working order on the day that it is installed and that it will conform to
IBM's official published specifications.
The following Warranty Period will apply to the machines:
Except for the purchase of installed leased or rented machines. the Warranty Period for each
machine will be 90 days commencing upon the Date of Installation of such machines.
For the purchase of installed leased or rented machines, the Warranty Period for each machine
will be 90 days commencing upon the date the originally ordered machine was first installed on
rent or lease with the Customer.
I . SERVICE AND PARTS WARRANTY
IBM will provide Warranty service to keep in or restore to good working order each machine for 90
days from the Warranty commencement date at no additional charge to the Customer, except as set
forth in the Section entitled "Exclusions." This Warranty service includes preventive maintenance
based upon the specific needs of individual machines as determined by IBM and unscheduled.
on-call remedial maintenance. Warranty service will also include lubrication. adjustments. and re-
placement of parts deemed necessary by IBM. Parts will be furnished on an exchange basis, and the
replaced parts become the property of IBM. Warranty service provided under this Agreement does
not assure uninterrupted operation of the machines.
Commencing on the Date of Installation of an additional feature or model upgrade increment. IBM
will provide a 90 day Service and Parts Warranty for such feature or model upgrade increment.
During the Warranty Period, engineering changes, determined applicable by IBM, will be controlled
and installed by IBM on the machines. The Customer may, by providing notice subject to written
confirmation by IBM. elect to have only mandatory changes, as determined by IBM, installed on the
machines.
IBM shall have full and free access to the machines to provide service thereon. The Customer shall
promptly inform IBM of any change in the machine's location during the Warranty Period. Service
outside the scope of the Warranty will be furnished at IBM's time and material rates then generally in
If. ADDITIONAL WARRANTY PROVISIONS
IBM further warrants that programming designated by IBM for use with a machine and for which
programming services are available will conform to IBM's official published specifications when
shipped to the Customer if properly used on such machine. Thereafter. IBM will provide programming
services. subject to the provisions stated in the Section entitled "Programming."
IBM does not warrant that the functions contained in the programming will operate in the
combinations which may be selected for use by the Customer. or will meet the Customer's
requirements.
ALL PROGRAMMING FOR WHICH NO PROGRAMMING SERVICES ARE AVAILABLE IS DISTRIBUTED `PATENT AND COPYRIGHT INDEMNITY
ON AN "AS IS" RASIS WITHOUT WARQVITV I.". I
141~11 41.
v6-11 r svr` ~v...a-%-..■.-.. . i
• ACCEPT¢NCE E VI Ce-,
Acceptance of this Agreement by IBM is contingent upon the absence of any mathematical
error and ypnn ounsistency with IBM's then current prices. Unless the Customer is advised
to .the%contrary within 30 days from the Customer's signing of this Agreement, this
~A6reement is accepted by IBM as written and is In full force and effect on the date signed
by SBM.
TERM
This Agreement will remain in force until the Renewal Month and will then be automatically
extended for annual period(s) until all machines have been withdrawn from service under
titis Agreement.
For each machine there will be a Service Commencement Date which will be the day
following the expiration date of the Service and Parts Warranty provision of an IBM
Purchase Agreement or the Service Commencement Date as shown on the face of this
Agreement, whichever is later. Service for each machine will be provided from the Service
Commencement Date up to but not including the first day of the Renewal Month as shown
on the face of this Agreement, or the Customers presently established Renewal Month if
the Customer elects to prorate. Thereafter, Service Availability for each machine will be
automatically extended for annual period(s), unless the machine is withdrawn from
service.
The Customer can terminate this Agreement or withdraw any machine from this Agreement
at any time with one month's prior written notice to IBM.
Except as otherwise provided herein, IBM may withdraw any machine from this Agreement
at any time following twelve months from the Service Commencement Date by providing
the Customer with one month's prior written notice.
SERVICE AVAILABILITY
IBM will provide service availability during IBM's normal business hours while the machine
is located within the United States, Puerto Rico, Guam or the Canal Zone. This service to
keep the machine(s) in, or restore the machine(s) to, good working order includes
unscheduled, on-call remedial maintenance and preventive maintenance (Inspections).
Inspections may be performed during the course of the on-call remedial maintenance and
are based upon the specific needs of the individual machine as determined by IBM.
Maintenance will include lubrication, adjustments and replacement of maintenance parts
deemed necessary by IBM. Maintenance parts will normally be either new or equivalent to
new in performance when installed in an IBM machine. If a new or equivalent to new part is
not available, and a used part is supplied, the Customer will be so advised. Maintenance
parts will be furnished on an exchange basis, and the replaced parts become the property
of IBM. Service provided under this Agreement does not assure uninterrupted operation of
the machine(s).
The Customer may purchase a Guaranteed Annual Inspection by so indicating on the face
of this Agreement. The charge will be the charge then generally in effect on the latter of the
Commencement Date or Renewal Month of this Agreement. If Guaranteed Annual
Inspection has been purchased and IBM fails to perform such inspection, the Customer
will be given a refund of the amount paid for such Guaranteed Annual Inspection.
CHARGES
The Customer agrees to pay a Basic Annual Service Charge as indicated on the face of this
°Agreement.
Service Charges are subject to increase by IBM effective on the Renewal Month with prior
written notice by IBM to the Customer.
If the Customer requests service to be performed at a time outside IBM's normal business
hours, there will be no additional charge for maintenance parts; however, the service, if
available, will be furnished at IBM's applicable hourly rates and terms then in effect.
When the distance from the Machine's Location to IBM's nearest Branch Office or Point of
Service is greater than 15 miles, the Customer agrees to pay IBM's then current Zone
Charges or travel charges. Travel charges will consist of actual travel expense plus travel
and waiting time at IBM's prevailing hourly rate. Travel charges will also apply if the
machine location is not normally accessible by private automobile or scheduled public
transportation or if the IBM Service Representative is unable to travel to the machine
location, perform regular service, and then travel to IBM's nearest Branch Office or Point of
Service within IBM's normal business hours.
Changes in machine specifications may result fn an adjustment of the Service Charge.
Such adjustment will become effective upon the installation of the specification change.
AUTOMATIC SERVICE AGREEMENT PROVISION (Optional-see face of this Agreement)
Each machine subsequently purchased, the type of which is eligible for service under this
Agreement, will be automatically added to this Agreement. The Service Commencement
Date will be the day following the expiration date of the Service and Parts Warranty
provision of the applicable IBM Purchase Agreement.
The Service Charge and Zone Charge, if any, will be the lower of charges then in effect on
the last Renewal Month for service under this Agreement or the charges in effect on the
Service Commencement Date for that machine.
TAXES
In addition to the charges due under this Agreement, the Customer agrees to pay amounts
equal to any taxes resulting from this Agreement, or any activities hereunder, exclusive of
taxes based upon net income.
INVOICING
The Basic Annual Service Charge and Zone Charge, if any, will be invoiced in advance.
Payment will be due as specified in the invoice. All other charges due hereunder are
payable as specified in the invoice. The Basic Annual Service Charge and Zone Charge, if
any, for a partial month's service will be prorated on the basis of a 30-day month.
EXCLUSIONS
Service under this Agreement does not include:
(a) repair of damage or increase in service time caused by accident, misuse, disaster, or
abuse; or by accessories, alterations, attachments or other devices not furnished
by IBM;
(b) furnishing or repairing supplies or accessories (optional features); painting; or
refinishing the machines;
(c) making specification changes;
(d) maintenance service due to the use of supplies, including repair of damage,
replacement of parts (due to other than normal wear) or repetitive service calls;
(e) service of accessories, alterations, attachments, or other devices not furnished by
IBM;
(f) repair of damage or increase in service time caused by failure to continually provide a
suitable installation environment with all facilities prescribed by IBM including, but
not limited to, adequate space, electrical power, air conditioning or humidity control;
and
(g) a ditional service time and or r p lacement-paRs due to conditions set forth in the
Sections "Access to Machines,'4"Engineering Changes Installation and Control,"
and "Non-IBM Parts."
ACCESS TO MACHINES
IBM shall have full and free access to the machine(s) to provide service thereon.
If persons other than IBM representatives shall install model conversions or feature
additions or shall perform service on a machine, and as a result further repair by IBM is
required, such furtherrepairs will be made at IBM's applicable time and material rates and
terms then in effect. If such additional repair is required, IBM may withdraw the machine
from this Agreement upon one month's prior written notice to the Customer following any
repetition of the need for additional repair of such machine caused by non-IBM service
activity.
ENGINEERING CHANGES-INSTALLATION AND CONTROL
Engineering changes, determined applicable by IBM, will be controlled and installed by
IBM on machines covered by this Agreement. The Customer may, by providing notice
subject to written confirmation by IBM, elect to have only mandatory changes, as
determined by IBM, installed on machines so designated.
IBM reserves the right to charge, at its applicable time and material rates and terms then in
effect, for additional service timeand replacement parts associated with the installation by
IBM of an engineering change when such additional service and parts are required due to
the conversion from one IBM model to another or the installation or removal of an IBM
feature whenever any of the foregoing was performed by other than IBM.
NON-IBM PARTS -
Service provided by IBM under this Agreement does not include the replacement or
adjustment of parts which were not furnished for the machine by IBM, or the time spent in
determining the need for replacement or adjustment of such parts, except for common
hardware items such as screws, nuts, bolts,-clamps and commercially available parts such
as lightbulbs. IBM will replace, at the Customer's request and at IBM's applicable time and
material rates and terms then in effect, maintenance parts which were not furnished for the
machine by IBM (except when such part is in an alteration) when such parts are directly
interchangeable with the IBM maintenance parts.
When IBM determines that a machine under this Agreement contains a part, not furnished
for the machine by IBM, which is particularly significant to IBM's ability to provide
maintenance service for such machine under this Agreement, IBM may withdraw the
machine from this Agreement upon one month's prior written notice to the Customer,
unless the Customer replaces the part with a directly interchangeable part furnished for the
machine by IBM. IBM will, at the Customer's request, replace such part with a directly
interchangeable part at IBM's applicable time and material rates and terms then in effect.
DISCLAIMER AND LIMITATION OF LIABILITY
IBM's liability to the Customer for damages, from any cause whatsoever, and regardless of
the form of action, whether in contract or in tort including negligence, shall be limited to
actual damages up to a maximum of $10,000 or twelve months Service Charges for the
specific machines under this Agreement that caused the damages or that are the subject
matter of or are directly related to the cause of action. The foregoing limitation of liability
will not apply to claims for personal injury or damage to real property or tangible personal
property caused by IBM's negligence.
IN NO EVENT WILL IBM BE LIABLE FOR LOST PROFITS OR OTHER CONSEQUENTIAL
DAMAGES EVEN IF IBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OR FOR ANY CLAIM AGAINST THE CUSTOMER BY ANY OTHER PARTY.
IBM DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS OF AN IMPLIED
WARRANTY OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUEN-
TIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO
YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO
HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
GENERAL
Subject to the terms of the following paragraph, IBM may modify the terms and conditions
of this Agreement effective on the Renewal Month by providing the Customer with prior
written notice.
Any such modification will apply unless the Customer exercises the option to terminate
this Agreement or withdraw the machine(s) affected by such modification. Otherwise, this
Agreement can only be modified by a written agreement duly signed by persons authorized
to sign agreements on behalf of the Customer and of IBM (an authorized IBM Manager) and
variance from the terms and conditions of this Agreement in any Customer order or other
written modification will be of no effect.
The Customer represents that the Customer is the owner of the machine(s) under this
Agreement, or, if not the owner, has authority from the owner to include such machine(s)
under this Agreement.
This Agreement is not assignable; its rights, duties and obligations may not be assigned
or transferred by the Customer without the prior written consent of IBM. Any attempt to
assign or transfer any of the rights, duties or obligations of this Agreement without such
consent is void.
IBM's service provided outside the scope of this Agreement will be furnished at IBM's
applicable time and material rates and terms then in effect.
IBM is not responsible for failure to render service due to causes beyond its control
(including a claim of patent infringement, or action thereon, that may inhibit IBM's ability
to render service).
Either party may withdraw any machine or all machines from this Agreement for failure of
the other to comply with any of its terms and conditions.
No action. regardless of form, arising out of this Agreement may be brought by either party
more than two years after the cause of action has arisen, or, in the case of non-payment.
more than two years from the date of the last payment. .
This Agreement will be governed by the laws of the State of New York.
Attachment
Z 140-2164-2 (6/80)
41 FACT 90
CUSTOMEIER
ALL PROGRAMMING FOR WHICH NO PROGRAMMING SERVICES ARE AVAILABLE IS DISTRIBUTED
ON AN "AS IS" BASIS WITHOUT WARRANTY.
IBM does not warrant that the operation of the machine or programming will be uninterrupted or
error free. or that all programming errors will be corrected.
111. EXCLUSIONS
The warranties provided by IBM under the Agreement do not include:
(a) repair of damage or increase in service time caused by failure to continually provide a suitable
installation environment with all facilities prescribed by IBM including, but not limited to.
adequate space. electrical power, air conditioning or humidity control;
(b) repair of damage or increase in service time caused by the use of the machines for other than
ordinary use for which designed;
(c) maintenance service due to the use of supplies, including repair of damage, replacement of
parts (due to other than normal wear) or repetitive service calls;
(d) repair of damage or increase in service time caused by: accident: disaster, which shall include,
but not be limited to, fire, flood, water, wind and li 7tning; transportation; neglect or misuse:
alterations, which shall include. but not be limited to, any deviation from IBM's physical,
mechanical or electrical machine design; attachments, which are defined as the mechanical,
electrical or electronic interconnection to an IBM machine of non-IBM equipment and devices
not supplied by IBM; or IBM machines, except those IBM machines which are owned by IBM,
under the Service and Farts Warranty provision of an IBM purchase agreement or under an IBM
service agreement:
(e) repair of damage or increase in service time caused by the conversion from one IBM model to
another or the installation or removal of an IBM feature whenever any of the foregoing was
performed by other than IBM. This exclusion shall apply only during the 90 days subsequent to
the date of such machine modification;
(f) additional service time and replacement parts associated with the installation by IBM of an
engineering change when such additional service and parts are required due to the conversion
from one IBM model to another or the installation or removal of an IBM feature whenever any of
the foregoing was performed by other than IBM;
(g) furnishing supplies (as designated by IBM) or accessories, painting or refinishing the machines
or furnishing material therefor, inspecting altered machines, making specification changes or
performing services connected with relocation of machines, or adding or removing accessories,
attachments or other devices;
(h) electrical work external to the machines or maintenance of accessories, alterations, attach-
ments or other devices not furnished by IBM;
(i) such service which is impractical for IBM to render because of alterations in, or attachments to,
the machines; and
(j) providing Warranty service if the machine is located outside the United States, Puerto Rico,
Guam or the Canal Zone.
WITH RESPECT TO PURCHASE OF INSTALLED LEASED OR RENTED MACHINES WHICH HAVE BEEN
INSTALLED FOR MORE THAN 90 DAYS, THE CUSTOMER AGREES TO PURCHASE THE MACHINES ON
AN "AS IS" BASIS WITHOUT WARRANTY.
IN NO EVENT WILL IBM BE LIABLE FOR ANY LOST PROFITS OR OTHER CONSEQUENTIAL DAMAGES,
EVEN IF IBM HAS BEEN ADVISE) OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
EXCEPT AS TO CONSUMER GOODS IN WHICH CASE THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE APPLY FOR THE PERIOD OF THE
EXPRESS WARRANTIES.
PURCHASERS OF CONSUMER PRODUCTS SHOULD NOTE THAT SOME STATES DO NOT ALLOW FOR
THE EXCLUSION OF CONSEQUENTIAL DAMAGES OR THE LIMITATION ON THE DURATION OF
IMPLIED WARRANTIES SO THE ABOVE EXCLUSION AND LIMITATION MAY NOT BE APPLICABLE.
THIS WARRANTY GIVES THE PURCHASER SPECIFIC LEGAL RIGHTS, AND THE PURCHASER MAY
ALSO HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
ALL IN UIRIES CONCERNING THE ABOVE WARRANTY AND/OR IBM'S PERFORMANCE THEREUNDER
SHOUL BE ADDRESSED TO IBM AT ITS BRANCH OFFICE ADDRESS SHOWN ON THE FACE OF THIS
AGREEMENT.
OTHER PRODUCTS AND SERVICES
All maintenance and other service activities (including but not limited to activities excluded from the
Warranties provided underthisAgreement and those relating to pre-installation planning, inspections,
relocation of machiAes, engineering changes and altered programming) which may be made available
by IBM to the Customer at no additional charge or at IBM's then applicable time and material charges,
in connection with any machines or programming supplied under this Agreement shall be subject to
the terms and conditions of this Agreement unless such activities are provided under another written
agreement signed by IBM and the Customer.
In addition to the machines, programming and services provided under this Agreement. IBM offers
other products and services at separate charges under applicable written IBM agreements. IBM and
the Customer agree that such products and services cannot be the subject of an oral agreement. The
Customer may contract with IBM for any such products or services as available, but only under the
terms and conditions of a written agreement signed by the Customer and IBM.
TRAVEL EXPENSE
There will be no charge for travel expense associated with Warranty service or programming service
under this Agreement, except travel charges in those instances where the machine location is not
normally accessible by private automobile or scheduled public transportation or if the IBM Service
Representative is unable to travel to the machine location, perform regular service, and then travel to
IBM's nearest Branch Office or Point of Service within IBM's normal business hours. In such instances
the Customer agrees to pay actual travel expense plus travel and waitingtimeat IBM's prevailing hourly
rate.
MAINTENANCE SERVICE AND PARTS
Following expiration of the applicable Warranty Period, IBM if requested will provide, at IBM's rates
and terms then in effect, maintenance service and maintenance parts for the machines, as long as
such service and parts are generally available.
ENGINEERING CHANGES
IBM will, upon request, furnish to the Customer, at IBM's prices then generally in effect, such
engineering changes as IBM shall have available for sale and which may be suitable for use on, or in
connection with, the machines. IBM makes no representation that engineering changes which may be
announced in the future will be suitable for use on, or in connection with, these machines.
PATENT AND COPYRIGHT INDEMNITY
IBM will defend the Customer against a claim that machines or programming supplied hereunder
infringes a U.S. Patent orCopyright, or that the machines' operation pursuant t6 the c-~rrrent unaltered
Operating Instructions provided by IBM for such machine and/or pursuant to a curren&elL%S"nd
modification level of any programming supplied by IBM infringes a U.S. patent. IBM will pay resulting
costs, damages and attorneys fees finally awarded provided that:
a) the Customer promptly notifies IBM in writing of the claim; and
b) IBM has sole control of the defense and all related settlement negotiations.
If such claim has occurred, or in IBM's opinion, is likely to occur, the Customer agrees to perm4 IBM,
at its option and expense either to procure for the Customer the right to continue using the machines or
programming or to replace or modify the same so that they become non-infringing. If neither of the
foregoing alternatives is reasonably available. the Customer agrees to return the machines or
programming on written request by IBM. IBM agrees to grant the Customer a credit for returned
machines as depreciated. The depreciation shall be an equal amount per year over the life of the
machines as established by IBM.
IBM has no liability for any claim based upon the combination, operation or use of any machines or
programming supplied hereunder with equipment or data not supplied by IBM, or with any program
other than or in addition to programming supplied by IBM, if such claim would have been avoided by
use of another program whether capable of performing the same or different function or result. IBM
has no liability for any claim based upon alteration of the machines or modification of any
programming supplied hereunder. if such claim would have been avoided by the absence of such
alteration or modification.
Theforegoing state the entire obligation of IBM with respectto infringement of patents and copyrights.
LIMITATION OF REMEDIES
IBM's entire liability and the Customer's exclusive remedy shall be as follows:
In all situations involving performance or non-performance of machines, model upgrades, features or
programming furnished under this Agreement, the Customer's remedy is (1) the adjustment or repair
of the machine, model upgrade or feature, or replacement of its parts by IBM, or, at IBM's option,
replacement of the machine, model upgrade or feature, orcorrection of programming errors, or (2) if,
after repeated efforts. IBM is unable to install the machine, model upgrade or feature or a replacement
machine, model upgrade or feature in good working order. or to restore it to good working order, or to
make programming operate, all as warranted, the Customer shall beentitled to recover actual damages
to the limits set forth in this Section. For any other claim concerning performance or non-performance
by IBM pursuant to, or in any other way related to the subject matter of, this Agreement or any order
under this Agreement, the Customer shall be entitled to recover actual damages to the limits set forth
in this Section.
IBM's liability for damages to the Customer for any cause whatsoever, and regardless of the form of
action, whether in contract or in tort including negligence, shall be limited to the greater of $25.000 or
the purchase price stated herein for the specific machines that caused the damages or that are the
subject matter of or are directly related to the cause of action. The foregoing limitation of liability will
not apply to the payment of cost and damage awards referred to in the Section entitled "Patent and
Copyright Indemnity," or to claims for personal injury caused solely by IBM's negligence.
In no event will IBM be liable for any damages caused by the Customer's failure to perform the
Customer's responsibilities. or for any lost profits or other consequential damages, even if IBM has
been advised of the possibility of such damages, or for any claim against the Customer by any other
party. except as provided in the Section entitled "Patent and Copyright Indemnity."
GENERAL
This Agreement is not assignable without the prior written consent of IBM. Any attempt to assign any
of the rights, duties or obligations of this Agreement without such consent is void.
ThisAgreement can only be modified by a written agreement duly signed by persons authorized to sign
agreements on behalf of the Customer and of IBM (an authorized IBM Manager), and variance from the
terms and conditions of this Agreement in any order or other written notification from the Customer,
will be of no effect. The term "this Agreement" as used herein includes any future written amendment
made in accordance herewith.
If the Customer defaults as to any obligation to return machines or fails to pay any amounts due
hereunder. IBM. in addition to any other remedies. may repossess the machines without notice and
the Customer agrees to pay all costs and expenses of collection.and/or repossession, including all
attorney's fees incurred, up to the maximum permitted by applicable state law.
If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the
validity. legality and enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
No action, regardless of form, arising out of this Agreement may be brought by either party more than
two years alter the cause of action has arisen, or, in the case of non-payment, more than two years
from the date of the last payment.
IBM is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond
its control.
is Agreement will be governed by the laws of the State of New York.
Page 3 of 3
Z 140-2164-2 (6180)
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THE TERMS AND CONDITIONS ON THE REVERSE SIDE ARE PART OF THIS AGREEMENT.
THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE CUSTOMER AGREES THAT
IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL
OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTFR nF Ti AnDrru[MY
BILL TO
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BY: BY:
IBM REPRESENTATIVE SIGNATURE CUSTOMER'S SIGNATURE DATE
DATE:
CUSTOMER REPRESENTATIVE'S NAME TITLE
Z 140-9086-0 Telephone Number
U/M 50 tied DO NOT PAY UNTIL INVOICED vot 41 dill 921
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Page 1 of 3
'CUSTOMER
ICM BRANCH OFFICE
r%I I cz-rn R. A r- 0
SERVICE AGREEMENT I
ACCEPTANCE k7le-4
Acceptance of this Agreement by IBM is contingent upon the absence of any mathematical
error and upon consistency with IBM's then current prices. Unless the Customer is advised
to the contrary within 30 days from the Customer's signing of this Agreement, this
Agreement is accepted by IBM as written and is in full force and effect on the date signed
by IBM.
TERM
This Agreement will remain in force until the Renewal Month and will then be automatically
extended for annual period(s) until all machines have been withdrawn from service under
this Agreement.
For each machine there will be a Service Commencement Date which will be the day
following the expiration date of the Service and Parts Warranty provision of an IBM
Purchase Agreement or the Service Commencement Date as shown on the face of this
Agreement, whichever is later. Service for each machine will be provided from the Service
Commencement Date up to but not including the first day of the Renewal Month as shown
on the face of this Agreement, or the Customer's presently established Renewal Month if
the Customer elects to prorate. Thereafter, Service Availability for each machine will be
automatically extended for annual period(s), unless the machine is withdrawn from
service.
The Customer can terminate this Agreement or withdraw any machine from this Agreement
at anytime with one month's prior written notice to IBM.
Except as otherwise provided herein, IBM may withdraw any machine from this Agreement
at any time following twelve months from the Service Commencement Date by providing
the Customer with one month's prior written notice.
SERVICE AVAILABILITY
IBM will provide service availability during IBM's normal business hours while the machine
is located within the United States, Puerto Rico, Guam or the Canal Zone. This service to
keep the machine(s) in, or restore the machine(s) to, good working order includes
unscheduled, on-call remedial maintenance and preventive maintenance (inspections).
Inspections may be performed during the course of the on-call remedial maintenance and
are based upon the specific needs of the individual machine as determined by IBM.
Maintenance will include lubrication, adjustments and replacement of maintenance parts
deemed necessary by IBM. Maintenance parts will normally be either new or equivalent to
new In performance when installed in an IBM machine. If a new or equivalent to new part is
not available, and a used part is supplied, the Customer will be so advised. Maintenance
parts will be furnished on an exchange basis, and the replaced parts become the property
of IBM. Service provided under this Agreement does not assure uninterrupted operation of
the machine(s).
The Customer may purchase a Guaranteed Annual Inspection by so indicating on the face
of this Agreement. The charge will be the charge then generally in effect on the latter of the
Commencement Date or Renewal Month of this Agreement. If Guaranteed Annual
Inspection has been purchased and IBM fails to perform such inspection, the Customer
will be given a refund of the amount paid for such Guaranteed Annual Inspection.
CHARGES
The Customer agrees to pay a Basic Annual Service Charge as indicated on the face of this
`'Agreement.
Service Charges are subject to increase by IBM effective on the Renewal Month with prior
written notice by IBM to the Customer.
If the Customer requests service to be performed at a time outside IBM's normal business
hours, there will be no additional charge for maintenance parts; however, the service, if
available, will be furnished at IBM's applicable hourly rates and terms then in effect.
When the distance from the Machine's Location to IBM's nearest Branch Office or Point of
Service is greater than 15 miles, the Customer agrees to pay IBM's then current Zone
Charges or travel charges. Travel charges will consist of actual travel expense plus travel
and waiting time at IBM's prevailing hourly rate. Travel charges will also apply if the
machine location is not normally accessible by private automobile or scheduled public
transportation or if the IBM Service Representative is unable to travel to the machine
location, perform regular service, and then travel to IBM's nearest Branch Office or Point of
Service within IBM's normal business hours.
Changes in machine specifications may result in an adjustment of the Service Charge. `
Such adjustment will become effective upon the installation of the specification change.
AUTOMATIC SERVICE AGREEMENT PROVISION, (optional-see face of this Agreement)
Each machine subsequently purchased, the type of which is eligible for service under this
Agreement, will be automatically added to this Agreement. The Service Commencement
Date will be the day following the expiration date of the Service and Parts Warranty
provision of the applicable IBM Purchase Agreement.
The Service Charge and Zone Charge, if any, will be the lower of charges then in effect on
the last Renewal Month for service under this Agreement or the charges in effect on the
Service Commencement Date for that machine.
TAXES
In addition to the charges due under this Agreement, the Customer agrees to pay amounts
equal to any taxes resulting from this Agreement, or any activities hereunder, exclusive of
taxes based upon net income.
INVOICING
The Basic Annual Service Charge and Zone Charge, if any, will be invoiced in advance.
Payment will be due as specified in the invoice. All other charges due hereunder are
payable as specified in the invoice. The Basic Annual Service Charge and Zone Charge, if
any, for a partial month's service will be prorated on the basis of a 30-day month.
EXCLUSIONS
Service under this Agreement does not include:
(a) repair of damage or increase in service time caused by accident, misuse, disaster, or
abuse; or by accessories, alterations, attachments or other devices not furnished
by IBM;
(b) furnishing or repairing supplies or accessories (optional features); painting; or
refinishing the machines;
(c) making specification changes;
(d) maintenance service due to the use of supplies, including repair of damage,
replacement of parts (due to other than normal wear) or repetitive service calls;
(e) service of accessories, alterations, attachments, or other devices not furnished by
IBM;
(f) repairof damage or increase in service time caused by failure to continually provide a
suitable installation environment with all facilities prescribed by IBM including, but
not limited to, adequate space, electrical power, air conditioning or humidity control;
and
TERMS AND CONDITIONS
(g) additional service time and/or replacement parts ue to conditlbr4 4et forth in the
Sections "Access to Machines,'4"Engineering Changes - Installation arM G*ntpl,"
and ".Non-IBM Parts."
ACCESS TO MACHINES ?
IBM shall have full and free access to the machine(s) to provide service thereon.
If persons other than IBM representatives shall install model conversions or feature
additions or shall perform service on a machine, and as a result further repair by (BM is
required, such further repairs will be made at IBM's applicable time and material rat,4s and
terms then in effect. If such additional repair is required, IBM may withdraw the machine
from this Agreement upon one month's prior written notice to the Customer following any
repetition of the need for additional repair of such machine caused by non-IBM service
activity.
ENGINEERING CHANGES-INSTALLATION AND CONTROL
Engineering changes, determined applicable by IBM, will be controlled and installed by
IBM on machines covered by this Agreement. The Customer may, by providing notice
subject to written confirmation by IBM, elect to have only mandatory changes, as
determined by IBM, installed on machines so designated.
IBM reserves the right to charge, at its applicable time and material rates and terms then in
effect, for additional service time and replacement parts associated with the installation by
IBM of an engineering change when such additional service and parts are required due to
the conversion from one IBM model to another or the installation or removal of an IBM
feature whenever any of the foregoing was performed by other than IBM.
NON-IBM PARTS
Service provided by IBM under this Agreement does not include the replacement or
adjustment of parts which were not furnished for the machine by IBM, or the time spent in
determining the need for replacement or adjustment of such parts, except for common
hardware items such as screws; nuts, bolts; clamps and commercially available parts such
as lightbulbs. IBM will replace, at the Customer's request and at IBM's applicable time and
material rates and terms then in effect, maintenance parts which were not furnished for the
machine by IBM (except when such part is in an alteration) when such parts are directly
interchangeable with the IBM maintenance parts.
When IBM determines that a machine under this Agreement contains a part, not furnished
for the machine by IBM, which is particularly significant to IBM's ability to provide
maintenance service for such machine under this Agreement, IBM may withdraw the
machine from this Agreement upon one month's prior written notice to the Customer,
unless the Customer replaces the part with a directly interchangeable part furnished for the
machine by IBM. IBM will, at the Customer's request, replace such part with a directly
interchangeable part at IBM's applicable time and material rates and terms then in effect.
DISCLAIMER AND LIMITATION OF LIABILITY
IBM's liability to the Customer for damages, from any cause whatsoever, and regardless of
the form of action, whether in contract or in tort including negligence, shall be limited to
actual damages up to a maximum of $10,000 or twelve months Service Charges for the
specific machines under this Agreement that caused the damages or that are the subject
matter of or are directly related to the cause of action. The foregoing limitation of liability
will not apply to claims for personal injury or damage to real property or tangible personal
property caused by IBM's negligence.
IN NO EVENT WILL IBM BE LIABLE FOR LOST PROFITS OR OTHER CONSEGUENTIAL
DAMAGES EVEN IF IBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OR FOR ANY CLAIM AGAINST THE CUSTOMER BY ANY OTHER PARTY.
IBM DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. SOME STATES 00 NOT ALLOW LIMITATIONS OF AN IMPLIED
WARRANTY OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUEN-
TIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO
YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO
HAVE OTHER RIGHTS WHICH MAY VARY FROM STATE TO STATE.
GENERAL
Subject to the terms of the following paragraph, IBM may modify the terms and conditions
of this Agreement effective on the Renewal Month by providing the Customer with prior
written notice.
Any such modification will apply unless the Customer exercises the option to terminate
this Agreement or withdraw the machine(s) affected by such modification. Otherwise, this
Agreement can only be modified by a written agreement duly signed by persons authorized
to sign agreements on behalf of the Customer and of IBM (an authorized IBM Manager) and
variance from the terms and conditions of this Agreement in any Customer order or other
written modification will be of no effect..
The Customer represents that the Customer is the owner of the machine(s) under this
Agreement, or, if not tfie owner, has authority from the owner to include such machine(s)
under this Agreement.
This Agreement is not assignable: its rights. duties and obligations may not be assigned
or transferred by the Customer without the prior written consent of IBM. Any attempt to
assign or transfer any of the rights, duties or obligations of this Agreement without such
consent is void. - - -
IBM's service provided outside the scope of this Agreement will be furnished at IBM's
applicable time and material rates and terms then In effect
IBM is not responsible for failure to render service due to causes beyond its control
(including a claim of patent infringement, or action thereon, that may inhibit IBM's ability
to render service).
Either party may withdraw any machine or all machines from this Agreement for failure of
the other to comply with any of its terms and conditions. ,
No action, regardless of form, arising out of this Agreement may be brought by either party
more than two years after the cause of action has arisen, or, in the case of non-payment,
more than two years from the date of the last payment.
This Agreement will be governed by the laws of the State of New York.
VOL 41 PAGE ,
Attachment
Z 140-2164-2 (6180)
VOL 41. DAv 91
e c; Installment Payment Agreement
= = POOR , FOR Hicropl Idtrrd (State and Local Government)
Fiscal. Year From I to Iv kt"'
Length of Installment Payment Plan C V
This Installment Payment Agreement supplements and amends the Purchase Agreement, dated I
19 between INTERNATIONAL BUSINESS MACHINES CORPORATION (IBM) and the Customer w/h/
re pectto the
IBM achines and/or their model upgrades and features (hereinafter called machines) on that Agreement.
Cash Price (Purchase Price from Purchase Agreement) ►
Trade-In Credit (from Purchase Agreement) ►
~J
Purchase Option Credits (from Purchase Agreement) ►
iU t
Cash Down Payment ❑ Time of Installation ❑ Effective Date of Purchase ►
- -
Total Down Payment (B + C + D
Unpaid Balance of Cash Price CA`-E)
State and Lo _ a :T ppii-oable)
l~maunt Financed/Unpaid Balance (F+G) ►
Time Price Differential - FINANCE CHARGE on Amount Financed ►
S
Tax on Time Price Differential (if app_'cable) ►
Total Payments (H + I + J) ►
Deferred Payment Price (A + G + 1) ►
Installment Payments to be made as follows:
(Select One)
❑ Monthly Option - First Installment Payment (Monthly Installment Payment Amount+J).$
Successive Monthly Installment Payments a
Annual Option
Fiscal Period Installment Payments
1
2
3
4
5
6
NOTE
FIRST INSTALLMENT PAYMENT INCLUDES
TAX ON TIME PRICE DIFFERENTIAL.
TIME PRICE DIFFERENTIAL BEGINS TO
ACCRUE 30 DAYS PRIOR TO THE FIRST
INSTALLMENT PAYMENT.
THE TERMS AND CONDITIONS ON THE REVERSE SIDE ARE A PART OF THIS AGREEMENT
NOTICE TO BUYER
t - Under the law, you are entitled to a completely filled in exact copy of this Agreement at the time you sign. Keep it to protect your legal rights.
2. Under the law, you have the right to pay off in advance the full amount due and to obtain a partial refund of the FINANCE CHARGE based on the "Actuarial Method".
3. IBM reserves a purchase money security interest in each of the machines listed herein. These interests will be satisfied by payment in full. A copy of this Agreement may be filed
on IBM's behalf with appropriate state authorities at any time after a signature by the Customer as a financing statement in order to perfect IBM's security interest.
4. If one of the events of default described on the reverse side of this document should occur, and if IBM should then exercise its right to declare all unpaid installments to be
immediately due and payable, you will have the right to a full refund of any part of the FINANCE CHARGE as yet unaccrued at the time of such declaration by IBM. In such a
case, your refund will be computed under the "Actuarial Method".
THE BUYER ACKNOWLEDGES RECEIPT OF A TRUE COPY OF THIS AGREEMENT(THIS IS A RETAIL INSTALLMENT CONTRACT)
THIS INSTALLMENT PAYMENT AGREEMENT AND THE PURCHASE AGREEMENT REFERRED TO HEREIN CONSTITUTE A SINGLE AGREEMENT AND THE COMPLETE
AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE BUYER AND IBM, WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR
WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. THE BUYER ACKNOWLEDGES
THAT THE BUYER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS, AND BY BUYER'S SIGNATURE ON
THIS AGREEMENT ACKNOWLEDGES THAT BUYER IS LEGALLY AUTHORIZED TO ENTER INTO THIS AGREEMENT. THE BUYER ACKNOWLEDGES RECEIPT OF A TRUE
COPY HEREOF AND OF THE PURCHASE AGREEMENT REFERRED TO HEREIN.
Custom 's (B er's) Name
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INSTALLMENT PAYMENT AGREEMENT
(State and Local Government)
TERMS AND CONDITIONS
ACCEPTANCE
Acceptance of this Agreement by IBM is contingent upon the absence of any mathematical error or
deviation from IBM's current prices. Unless the Buyer is advised to the contrary within 30 days after
the signing of this Agreement, this Agreement is accepted by tBM as written and is in lull force and
effect on the date signed by IBM.
PAYMENT
The Customer promises to pay:
(1) the Cash Down Payment in full, and
(2) the Installment Payments until fully paid, all as shown on the first page of this Agreement.
The Cash Down Payment will be due as follows:
(1) for other than the purchase of installed teased or rented machines on the Date of
Installation; or
(2) for the purchase of installed leased or rented machines on the Effective Date of Purchase.
The First Installment Payment will be due on the 1st day of the second month following the
Installation Date or Effective Date of Purchase.
If Customer selects the Monthly Option, successive Installment Payments will be due on the 1st day
of each'month following the due date for the First Installment Payment. If Customer selects the
Annual Option, successive Installment Payments are due on the first day of succeeding. fiscal
per1065.
The Customer having been offered the choice of purchaSlfi ' ^^?-~dSl,Pf e-(less any credit for
trade-in equipment or purchase option accruals) plus applicable State and LocalT$ke 2llE
Deferred Payment Price has elected to purchase at such Deferred Payment Price.
The Customer may at any time pay in advance the full amount due hereunder and the Time Price
Differential will be adjusted by IBM to reflect the shorter payment period.
All remittances are to be made to the IBM Branch Office Address shown on the Installment Payment
Record, which will be mailed to the Customer by IBM.
ASSIGNMERTS '
This Installment Payment Agreement is not assignable by the Customer, nor may the Customer sell,
transfer, relocate, or dispose of the machines, or any of them, without prior written permission of
IBM,; In no event may the machines be relocated outsidethe United States. Any attempted assignment
or transfer by the Customer of any of the rights, duties or obligations of this Installment Payment
Agreement is void.
CUSTOMER'S COVENANTS
The Customer agrees that: (a) it will not create, assume, or voluntarily suffer to exist, without giving
IBM at least 15 calendar days' prior written notice, any mortgage, pledge, encumbrance, security
interest, lien, or charge of any kind upon the machines, or any of them; (b) it will keep the machines
in good repair and operating condition; (c) it will pay promptly all taxes and other charges when levied
or assessed upon the machines, or their operation or use, or upon IBM in connection with this
Installment Payment Agreement (exclusive of taxes based on net income); and (d) it will promptly
satisfy all liens against the machines.
The Customer further agrees to procure and maintain fire insurance with extended coverage against
loss, theft, damage to or destruction of the machines for the full insurable value thereof for the
duration of this Installment Payment Agreement, the policy for such insurance being endorsed to
show loss payable to IBM and assigns,as respective interests may appear. Upon request a certificate
of such insurance will be furnished to IBM or assigns. Any proceeds received directly by IBM under
such insurance shall be credited to the payment required from the Customer pursuant to the Section
entitled "Destruction of Machines."
DESTRUCTION OF MACHINES
In the event that any of the machines shall be lost, stolen, irreparably damaged or destroyed or
otherwise rendered permanently unfit for use from any cause whatsoever (such occurrences being
hereinafter called Casualty Occurrences) prior to the payment in full of the Total Installment Payment
Price, to the extent permitted by law the Customer shall promptly pay to IBM a sum equal to the
aggregate Casualty Value of such machines. Any money so paid shall be applied, on the installment
date next following receipt by IBM of such payment, to reduce installments thereafter falling due so
that such installments represent only the payments due for the remaining machines.
The Casualty Value of each machine suffering a Casualty Occurrence shall be the sum of the balances
of unpaid Installment Payments and Time Price Differential unpaid at the time of such Casualty
Occurrence and attributed to such machine, such Time Price Differential being adjusted by IBM to
reflect the shorter payment period.
DEFAULTS
Any one or more of the following are events of default: (a) the Customer shall fail to pay in full any
sum payable by the Customer when due hereunder following IBM's written notice of such failure,
except as provided for in the Section titled "Funding"; (b) the Customer shall fail to obtain insurance
as required in this Installment Payment Agreement; (c) the Customer shall, for more than 30 days
after IBM shall have demanded in writing performance or observance thereof, failed to comply with
any other term of this Installment Payment Agreement, (d) any insolvency proceedings of any
character, voluntary or involuntary, shall be instituted by or against the Customer; or (e) the
Customer shall make an assignment for the benefit of creditors.
VOL 41 PACE 95
S_
REMEDIES
If an event of default shalt have occurred, IBM or assigns may, to the extent permitted by law: (a)
recover the balance of amounts due hereunder; (b) enter any premises where the machines maj-be
and take possession of them, or render them unusable, and retain all prior payments as partial
compensation for their use and depreciation; (c) if Customer has failed to keep the machines in good
repair and operating condition, restore the machines to good repair and operating condition at
Customer's expense for actual time and materials expended by IBM at IBM's then current charges; (d)
sell the machines, after at least 15 days' notice before the date of any intended public sale or the date
after which any private sale or other disposition of the machines is to be made, with or without the
machines at the sale, at which sale IBM or assigns may purchase the machines; (e) incur attorney's
fees and legal expenses in exercising any of its rights and remedies upon default which the Customer
agrees to pay; and/or (f) pursue any other remedy permitted by law or inequity
Waiver of any default shall not be a waiver of any other default, all of IBM's rights hereunder are
cumulative and not alternative.
FUNDING
Since the Customer intends to request the appropriation of funds periodically to be paid for the
machines, if funds are not appropriated for the Customer for such Installment Payments for any
future Fiscal Period, the Customer will not be obligated to pay the remainder of the Total Installment
Payment Price due beyond the end of the then current Fiscal Period. Such event will not constitute an
event of default. The Customer agrees to notify IBM in writing of such nonappropriation at the earliest
possible time.
In the event that funds are not appropriated as provided above and the Customer is unable to make
further payments due under this Installment Payment Agreement beyond the end of the then current
enod, IBM will~, within aereasonable time after the end of such Period, enter and take the
machines from t 6 nrmises and will retain all sums previously paid by Customer to IBM
as partial compensation for machine usean ~`3IaIt1[4 rovided, however, that upon Customer's
request, Customer may, prior to such repossession, retain the niae III- I .onable period
agreed to by IBM at a monthly charge designated by IBM, beginning on the first day following 1
Fiscal Period for which payment has been made hereunder.
ANY HOLDER OF THIS CONTRACT IS SUBJECT TO ALL CLAIMS AND
DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE
SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO
OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE
DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR
HEREUNDER.
LOCATION OF MACHINES
The machines shall remain personal property, not become part of the freehold, and be kept at the
Customer's address shown on the face of this Agreement where IBM may inspect them at any
reasonable time.
Until payment in full of the Deferred Payment Price due hereunder, the Customer may not sell,
transfer, substantially modify, relocate or dispose of the machines, or any of them, without prior
written permission of IBM, nor may the machines be relocated outside the United States.
GENERAL
If the unit price or trade-in credit for any machine is adjusted as provided for in the Purchase
Agreement referred to herein, the payments herein agreed to be paid shall be adjusted and this
Installment Payment Agreement shall be amended accordingly.
The terms and conditions of this Installment Payment Agreement shall prevail notwithstanding any
variance with the terms and conditions of the Purchase Agreement referred to herein.
Should this Installment Payment Agreement and/or the Purchase Agreement referred to herein be
held by the courts to be invalid or unenforceable, in whole or in part, the parties agree that the
machines shall be deemed to have been installed pursuant to the terms and conditions of IBM's State
and Local Government Lease Plan at IBM's applicable State and Local Government Lease Plan
Monthly Charges, commencing with the Date of Installation or the Effective Date of Purchase of the
machines. For the period prior to such holding, IBM shall credit to the applicable Lease Plan Monthly
Charges the amounts paid by the Customer to IBM under this Installment Payment Agreement and
amounts paid by the Customer for maintenance, property taxes and insurance. Any excess credits
shall be refunded to the Customer, and any deficiency shall be due to IBM, but in no event shall any
amount be due to IBM in excess of funds appropriated.
i
Page 2 of 2
Z 140-2186-2 16/80)
U/M 025
International Business Machines Corporation
December 22, 1981
Mike Maier
Deschutes County
Courthouse Annex
Bend, OR 97701
Dear Mike :
VOL 41 FAGS
4263 Commercial Street, S.E.
P.O. Box 14329
Salem, Oregon 97309
ItFiCEIVED 503/399.3800
Dvc 2 R, 091,
In reference to your question on an Installment Payment Agreement (State
and Local Government), Sub-section, Funding:
"In the event that funds are not appropriated as provided
above, and the Customer is unable to make further payments
due under this Installment Payment Agreement beyond the
end of the then current Fiscal Period, IBM will, within a
reasonable time after the end of such Period, enter and take
the machines from the Customer's premise and will retain all
sums previously paid by Customer to IBM as partial comp-
ensation for machine use and depreciation; provided, however,
that upon the Customer's request, Customer may, apply to
such repossession, retain the machines during a reasonable
period agreed to by IBM on a monthly charge as stated by
IBM, beginning on the first day following the last Fiscal
Period for which payment has been made hereunder."
There are only two examples that IBM may request partial compensation: 1)
IBM has not received a 30-day written notice that the customer has indeed
not been funded for the next current fiscal year, and 2) that there are back
payments of money owed to IBM for use of the machine.
Mike, I hope this clarifies the above contract. If there is any further
clarification needed or required, please do not hesitate to contact me on
399-3873 in Salem, Oregon.
Sincerely yours,
_erry A . Dusa
Branch Manager
Office Products Division
Salem, Oregon
•
TO: INTERNATIONAL BUSINESS MACHINES CORP.
(BRANCH OFFICE ADDRESS)
,~5Iv.57 Alit- GaktolIze)
Pm 41 0) k- 9770/
FROM: CUSTOMER NAME AND ADDRESS
(MACHINE LOCATION)
I`y_ 3Q-h u 1'F_S C6. Coud~t4ol)S-Q_
g-7-201
VOL 41 FACE 97
SERVICE AGREEMENT III
can-/
POOR FOR MICROFILMING
CUSTOMER NUMBER: 94740-"
DO NOT PAY UNTIL INVOICED
CUSTOMER HEREBY ORDERS IBM SERVICE AND IBM AGREES TO PROVIDE SUCH SERVICE ON THE FOLLOW-
ING MACHINE(S).
MACHINE
r' Basic
Monthly
Usage
Volume
Additional
Monthly
Initial Period of
Service Availability
ype/Model
eature
Serial Number
Service
~Charge*
Per Unit
Included
In Basic
Charge
Service
Usage
Charge
Rate
Commencement
Date
Expiration
Date
15,000
a-1 $lP
l; r
05.5-0
15,060
1000
a a Bl
'
aogq
3o-ao0
o
la
f
.
WO-1-
0 072-
i'-,
*If Applicable, Basic Monthly Service Charge includes a Zone Charge of per serial number machine.
THE TERMS AND CONDITIONS ON THE REVERSE SIDE ARE PART OF THIS AGREEMENT.
THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES f,BE BOUND BY ITS TERMS AND CONDITIONS. FURTHER, THE CUSTOMER AGREES THAT
IT IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL
OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT.
BY: _
IB REPR EN ATIVE SIGNATURE TOM 'S SIGNAT E DATE
DATE:
CUSTOMER REPRESENTATIVE'S NAME TITLE
Z140-2148-1 CUSTOMER'S COPY
U/M 25 Rpt. 8/79
SERVICE AGREEMENT III
TERMS AND CONDITIONS
ACCEPTANCE
Acceptance of this Agreement by IBM is contingent upon the absence of any mathematical error
and upon consistency with IBM's then current prices. Unless the Customer is advised to the
contrary within 15 days from the Customer's signing of this Agreement, this Agreement is
accepted by IBM as written and is in full force and effect on the date signed by IBM.
TERM
Except as otherwise provided herein, this Agreement will remain in force until all machines listed
on the face hereof have been withdrawn from service under this Agreement.
Service for each machine will be provided for an Initial Period of Service Availability as shown on
the face of this Agreement. Thereafter, service availability for each machine will be automatically
extended for annual period(s) unless the machine is withdrawn from service under this
Agreement.
The Customer can terminate this Agreement or withdraw any machine from this Agreement at any
time on one month'_sv prjpr raten.notic6 to IBM t , , st{ l
Except as otherwise: provf$iild he~e(ri, IBM may withdraw any machine from this Agreement upon
the expiration of the Initial Period of Service Availability or any subsequent annual period by
providing the Customer with three months' prior written notice.
SERVICE AVAILABILITY
The Commencement Date shown for each machine on the face of this Agreement starts the Initial
Period of Service Availability for that machine.
IBM will provide service availability during IBM's normal business hours while the machine is
located within the United States, Puerto Rico, Guam or the Canal Zone. This service to keep the
machine(s) in, or restore the machine(s) to, good working order includes preventive maintenance
based upon the specific needs of the individual machine as determined by IBM and unscheduled,
on-tali remedial maintenance. Maintenance will include lubrication, adjustments and replacement
of maintenance parts deemed necessary by IBM. Maintenance parts will be furnished on an
exchange basis, and the replaced parts become the property of IBM. Service provided under this
Agreement does not assure uninterrupted operation of the machine(s).
CHARGES
Service charges will begin on the Commencement Date for each machine.
The Customer agrees to pay service charges consisting of (1) a Basic Monthly Service Charge as
shown on the face of this Agreement and (2) an Additional Monthly Service Usage Charge for Usage
Volume made in excess of the Usage Volume included in the Basic Monthly Service Charge. The
additional Monthly Service Usage Charge will be determined by multiplying the excess Usage
Volume, if any, as recorded on the meter by the Additional Monthly Service Usage Charge Rate.
In order to ensure accurate measurement of monthly usage, the Customer will submit to IBM a
"Usage Card" showing the meter reading for each machine as of the close of the last work day of
each calendar month. The Customer agrees not to interfere with the proper operation of the
meter.
If the Customer requests service to be performed at a time outside IBM's normal business hours
there will be no additional charge for maintenance parts; however, the service, if available, will be
furnished at IBM's applicable hourly rates and terms then in effect.
When the distance from the Machine's Location to IBM's nearest Branch Office or Point of Service
is greater than 15 miles, the Customer agrees to pay IBM's then current Zone Charges or travel
charges, Travel charges will consist of actual travel expense plus travel and waiting time at IBM's
prevailing hourly rate, if the machine location is not normally accessible by private automobile or
scheduled public transportation or if the IBM Service Representative is unable to get to and from
the machine location with adequate time in-between for machine repair within one day (IBM's
normal business hours).
Changes in machine specifications may result in an adjustment of the service charge$). Such
adjustment will become effective upon the installation of the specification change.
Service charge(s) are subject to increase by IBM at any time upon three months' prior written
notice to the Customer and will become effective on the date specified in the notice unless the
Customer elects to withdraw the machine from this Agreement as provided herein.
TAXES
In addition to the charges due under this Agreement, the Customer agrees to pay amounts equal
to any taxes resulting from this Agreement, or any activities hereunder, exclusive of taxes based
upon net income.
INVOICING
The Basic Monthly Service Charge and Zone Charge, if any, will be invoiced in advance as of the
first of each month. Any Additional Monthly Service Usage Charge will be invoiced in the month
following the month in which it is incurred. Payment shall be due within 30 days after the date of
the invoice. All other charges due hereunder are payable as specified in the invoice. Basic Monthly
Service Charge and Usage Volume included and Zone Charges, if any, for a partial month's service
will be prorated on the basis of a 30-day month.
EXCLUSIONS
Service provided by IBM under this Agreement does not include:
(a) repair of damage or increase in service time caused by failure to continually provide a suitable
installation environment with all facilities prescribed by IBM including, but not limited to, the
failure to provide, or the failure of, adequate electrical power, air conditioning or humidity
control;
(b) repair of damage or increase in service time caused by the use of the machines for other than
ordinary use for which designed;
(c) repair of damage, replacement of parts (due to other than normal wear) or repetitive service
calls caused by the use of supplies;
(d) repair of damage or increase in service time caused by: accident; disaster, which shall
include, but not be limited to, fire, flood, water, wind and lightning; transportation; neglect or
misuse; alterations, which shall include, but not be limited to, any deviation from IBM's
physical, mechanical or electrical machine design; attachments, which are defined as the
mechanical, electrical or electronic interconnection to an IBM machine of non-IBM equipment
and devices not supplied by IBM; or IBM machines, except those IBM machines which are
owned by IBM, under the Service and Parts Warranty Provision of an IBM Purchase
Agreement or under an IBM Service Agreement;
(e) repair of damage or increase in service time caused by conversion from one IBM model to
another or the installation or removal of an IBM feature whenever any of the foregoing was
performed by other than IBM. This exclusion shall apply only during the first three months of
IBM Service Agreement service subsequent to the date of such machine modification;
(f) replacement parts or increase in service time as set forth in the sections entitled "Access to
Machines" and "Engineering Changes-Installation and Control" or replacement of non-IBM
parts as set forth in the section entitled "Non-IBM Parts;"
(g) furnishing supplies or accessories, painting or refinishing the machine(s) or furnishing
material therefore, inspecting altered machines, making specification changes or performing
services connected with relocation of machines, or adding or removing accessories, attach-
ments or other devices;
(h) electrical work external to the machines or maintenance of accessories, alterations, attach-
ments or other devices not furnished by IBM; and
(i) such service which is impractical for IBM to render because of alterations in, or attachments
to, the machines.
VOL 41 PAL*~. 9
ACCESS TO MACHINES
IBM shall have full and free access to the machine(s) to provide service thereon. 4
If persons other than IBM representatives shall perform maintenance or repair of a machine, and
as a result further repair by IBM is required, such further repairs will be made at IBM's applicable
time and material rates and terms then in effect. If such additional repair is required, IBM may
withdraw the machine from this Agreement upon one month's prior written notice to the
Customer following any repetition of the need for additional repair of such machine caused by
non-IBM service activity.
In the event that IBM determines that it is necessary to remove a machine covered by this
Agreement from the Customer's premises to an IBM location in order to perform required service,
the Customer shall permit the removal at IBM's expense for that sole purpose subject to the
section entitled "Exclusions." If the Customer refuses to allow such removal, IBM may withdraw
the machine from this Agreement on one month's prior written notice to the Customer.
ENGINEERING CHANGES-INSTALLATION AND CONTROL
Engineering changes, determined applicable by IBM, will be controlled and installed by IBM on
machines covered by this Agreement. The Customer may, by providing notice subject to written
confirmation by IBM, elect to have only mandatory changes, as determined by IBM, installed on
machines so designated.
IBM reserves the right to charge, at its applicable time and material rates and terms then in effect,
for additional service time and replacement parts associated with the installation by IBM of an
engineering change when such additional service and parts are required due to the conversion
from one IBM model to another or the installation or removal of an IBM feature whenever any of
the foregoing was performed by other than IBM.
NON-IBM PARTS
Service provided by IBM under this Agreement does not include the replacement or adjustment of
parts which were notfurnished for the machine by IBM, or the time spent in determining the need
for replacement or adjustment of such parts, except for common hardware items such as screws,
nuts, bolts, clamps, and commercially available parts, e.g., light bulbs, etc. IBM will replace, at the
Customer's request and at IBM's applicable time and material rates and terms then in effect,
maintenance parts which were not furnished for the machine by IBM (except when such part is in
an alteration) when such parr; are directly interchangeable with the IBM maintenance parts.
When IBM determines that a machine under this Agreement contains a part, not furnished for the
machine by IBM, which is particularly significant to IBM's ability to provide maintenance service
for such machine under this Agreement, IBM may withdraw the machine from this Agreement
upon one month's prior written notice to the Customer, unless the Customer replaces the part
with a directly interchangeable part furnished for the machine by IBM. IBM will, at the Customer's
request, replace such part with a directly interchangeable part at IBM's applicable time and
material rates and terms then in effect.
DISCLAIMER AND LIMITATION OF LIABILITY
IBM's liability to the Customer for damages, from any cause whatsoever, and regardless of the
form of action, whether in contract or in tort including negligence, shall be limited to actual
damages up to a maximum of $25,000 for each machine under this Agreement that caused the
damages or that are the subject matter of or are directly related to the cause of action. The
foregoing limitation of liability will not apply to claims for personal injury or damage to real
property or tangible personal property caused by IBM's negligence.
IN NO EVENT WILL IBM BE LIABLE FOR LOST PROFITS OR OTHER CONSEQUENTIAL
DAMAGES EVEN IF IBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR FOR
ANY CLAIM AGAINST THE CUSTOMER BY ANY OTHER PARTY.
GENERAL
Subject to the terms of the following paragraph, IBM may, upon twelve months' prior written
notice to the Customer, modify the terms and conditions of this Agreement except the section
entitled "Charges." IBM may, upon three months' prior written notice to the Customer, modify
the terms and conditions of the section entitled "Charges."
Any such modification will apply on the effective date specified in the notice unless the Customer
exercises the option to terminate this Agreement or withdraw the machine(s) affected by such
modification. Otherwise, this Agreement can only be modified by a written agreement duly signed
by persons authorized to sign agreements on behalf of the Customer and of IBM (an authorized
IBM Manager), and variance from the terms and conditions of this Agreement in any customer
order or other written modification will be of no effect.
The Customer represents that he is the owner of the machine(s) under this Agreement, or, if not
the owner, has authority from the owner to include such machine(s) under this Agreement.
This Agreement is not assignable; its rights, duties and obligations may not be assigned or
transferred by the Customer without prior written consent of IBM. Any attempt to assign or
transfer any of the rights, duties or obligations of this Agreement without such consent is void.
IBM service provided outside the scope of this Agreement will be furnished at IBM's applicable
time and material rates and terms then in effect.
IBM is not responsible for failure to render service due to causes beyond its control (including a
claim of patent infringement or action thereon, that may inhibit IBM's ability to render service).
Either party may withdraw any machine or all machines from this Agreement for failure of the
other to comply with any of its terms and conditions.
No action, regardless of form, arising out of this Agreement may be brought by either party more
than two years after the cause of action has arisen, or, in the case of nonpayment, more than two
years from the date of the last payment.
All maintenance and other service activities which may be made available by IBM to the Customer
at no additional charge or at IBM's then applicable time and material charges, in connection with
any machines or programming supplied under this Agreement, shall be subject to the terms and
conditions of this Agreement unless such activities are provided under another written agreement
signed by the Customer and IBM.
This Agreement will be governed by the laws of the State of New York