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Home My WebLink About127-86 RESOLUTIONRESOLUTION NO. 177-P . x. A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE LEASE PURCHASE AGREEMENTS WITH IBM AND XEROX FOR COPY MACHINES. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: That the Mayor and City Clerk are hereby authorized and directed to execute lease purchase agreements with IBM and Xerox for copy machines. Copies of the agreements authorized for execution hereby are attached hereto marked Exhibits "A", "B", "C" and "D" and made a part hereof. PASSED AND APPROVED this day of 4?l APPROVED nnramhar , 1986. By'/94--irwr44rJ Mayor Customer agrees to -the following transaction(s) and Ibe Incorporation of the Xerox standard terms and conditions relating (hereto for the ecqulsitlon'of Xerox Equipment, Supplies and/or Service described beldw end In the attachments hereto: A ❑ Maintenance Only ❑ Installment Purchase of Equipment: 0 With Maintenance 0 Software License ❑ Financed Equipment Configuration Change Term Lease ❑ Equipment Services ❑ Equipment Purchase: 0 With Maintenance Bill To Customer Name Parent Co. (If different) Box a/Routing Street Address City 171 . OF . Fa'I ETTEVILLrE oh►N. %1 -OG. \.1�. W,. o UNtk.►N . s -r ' x1t it General Order Information: Qty. Xerox Product (Ser. # if in place) Xerox) 044.5 xsrolQo%% xerox sN(1\-\ Xerox Sl)cicR. xeroxOl`-a Pr+a"D Xerox Xerox Xerox Xerox 7M 21.)%i 2. 3. 4 Ifs I�ti�z ...... . Purchased or Prepaid Software, License • Less Deductions: Opt. to Purch. Trade -In Other Installed At Customer Name , Name Overflow Floor. Room. Routing Street Address City List Price Total List $ 1L:'O't°° Vito 2g 0 u,,• A. From Attached Order Agreements B. Total Existing Equipment to be Replaced (List Serial Numbers) Q34-- onInfin% Tax ExemptNo 0 Yes (Attach Exemption Certificate) Customer Requires Purchase Order Number*,No 0 Yes Customer Purchase Order Number Equipment Maintenance Earliest Customer Acceptance Date Master Purchase Agreement # Purchase Order References are for Billing Purposes Only. 14,0 1 Initial Supply Order Oly. Reorder Number Prepacked supplies will be shipped with selected Equipment and billed to the customer al the pre - packed price in effect al the time of installation. Prepacked supplies will be removed, free of charge, and wilh lull credit it requested by Customer. Customer Requests Full Credit Supply P.O.* Xerox Supply Cont.# Complete This Section For Equipment Services Or Maintenance Or Monthly Software License: !Price Plan Description Initial Term Gov't. Firm Contract Option 0 Gov't. Fiscal Year Option 0 Billing Cycle Gov't. Fiscal Year Begins / / I State I Zip • Net Price Installment Purchase B. Total Net Price C Cash Down Payment D. Cash Price (Principal Balance 1E3 - C1) E. Finance Charge or Interest al �d F Time Balance (D . E) G. Time Sale Nee (C • FI Monthly Installments of �S� (Exclusive Ex ( Total Nal Price ceent of i (`Total/Use Tax. Placement, V Maintenance and Supply Charges) Complete This Section For Term Lease: Term of Agreement (Check One Plan) ❑ 24 Month 0 48 Month 0 Other P.36 Month 0 6 Month Original Customer/Contract a95 Purchase Option Amount $ Purchase Option Amount From Attached Agreement(s) $ Copy Allowance Period Monthly YC Semi Annual 'Annual Esq Copy Allowance Monthly Minimum Lease Payment $ 3agi 53 Copy Charges will be bi led separately in accordance with the Maintenance Price List indicated below. From Attached Order Agreement(s) fr Total Monthly Minimum Lease Payment (Exclusive of Sales/Use Tax and Placement Chgs) Contract Number K-12 Summer Option Equipment may be newly manufactured, remanufactured or previously Installed as described In the Xerox Price LIat or may be in -Place. Customer must initial to acknowledge ecelpt of the Xerox Price List. Terms and Conditions end other docyments designated below: ts Xerox Price List dated V • ,4 E. Term Lease Terms and Conditions dated cm --85 wow U-1— 19 /its 61-v1 Xerox Maint. Price List dated-- Vse. F. Full Service Maint. Terms and Cond. dated G Standard Maint. Terms and Agreements dated N Equipment Trade -In Terms and Conditions dated I. Software License Terms and Conditions dated J Extended Service (Warranty) Amendment dated K. Negotiated Contract Gov't. Contract/Price List it dated A. Equipment Order/Agreement(s) dated B. Equipment Services Terms and Conditions dated C. Equipment Purchase Terms and Conditions dated D. Installment Purchase Terms and Conditions dated Customer By (Please Print) Suc�y 1+4 AKet/Z--- Signature Date 8 r Title Xerox Corporation t Signatu4kdWr(d&la Sk, Title dated bgs� Sales Rep. Order AMnowledgemeni" Initials Installment Purchase or (t5 Term Lease Customer No 'JJ Accepted for Xerox Cita rlaarnn Date n Vele 11 Mn tinier Anraomont Name and Address of Customer: City of Fayetteville 113 W. Mountain St. Fayetteville, AR 72701 Agreement for Purchase of IBM Machines IBM Branch Office Address: 400 W. Capitol Ave. Suite 1200 Little Rock, AR 72201 Agreement No.: IBM Branch Office No.: MK6 Customer No-: 3017174 International Business Machines Corporation (IBM) and the Customer agree that the following terns and conditions will apply to any Cus- tomer order accepted by IBM for the purchase under this Agreement of ism machines, features, model conversions, machine elements or accessories or of non -IBM equipment. IBM will t) sell machines to the Customer, 2) fumish, as available, programming and programming service 3) sell features and model conversions to the Customer for installation or reinstallation on an IBM machine designated by type and serial number, 4) sell machine elements, accessories and non -IBM equipment to the Customer, and 5) provide warranty service as applicable. The term "Machines" refers to IBM machines and/or their features. model conversions, machine elements and accessories unless the context requires individual reference. The term "Machines" also applies to non -IBM equipment except as otherwise p ovided in the Section entitled "Purchase of Non -IBM Equipment:' Machines are those on -order to be installed, or which are installed unde an IBM lease or rental agreement with the Customer. Features include additions and removals. Model conversions include upgrades and downgrades between models and between machine types. The term "programming" shall mean such programming as IBM may make gene ally available, without separate charge, for machines of the types ordered by the Customer under this Agreement. The term "programming service" shall mean such service as IBM may make generally available, without separate charge, in connection with programming. IBM will furnish such program- ming, as requested by the Customer, and will determine the programming services available and their duration. The Customer agrees to accept Machines, programming, programming service and warranty service under the terms and conditions of this Agreement. The Customer further agrees, with respect to Machines and programming, to accept responsibility for 1) their selection to achieve the Customers 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, acquired outside this Agreement, used with the Machines and programming. Individual Machines become subject to this Agreement when either the Customer's written order for their purchase, or the Customer's order for their purchase under another ordering procedure designated by IBM, is accepted by IBM. Such order to purchase an on -order Machine must be received by IBM on or before its Date of Installation. IBM will accept an order by providing to the Customer a Supplement to this Agreement (Supplement), or other documentation designated by IBM, confirming the terms applicable to the Machine. Installation of an on -order Machine, as defined in the Section entitled "Installation," or payment of the Purchase Price of an on -order or installed Machine (or payment of the down payment or the first installment if subject to an IBM installment agreement), whichever first occurs following the Customer's receipt of the Supplement, will constitute the Customer's acceptance of such terms. PRICES AND PAYMENT TITLE The Purchase Price for each Machine will be stated in the Sup- plement and does not include any applicable taxes or destination charges. Payment in full for each on -order Machine will be due on its Date of Installation and, for each installed Machine, on its Effec- tive Date of Purchase, unless otherwise provided in an IBM install- ment agreement. TAXES In addition to the prices stated in the Supplement, the Customer agrees to pay amounts equal to any taxes resulting from this Agreement, or any activities hereunder, exclusive of taxes based on IBM's net income. The Customer shall bear any personal prop- erty taxes assessable on on -order Machines on and atter delivery to the carrier or, for installed Machines on and after the Effective Date of Purchase. DESTINATION CHARGES Destination charges for each on -order Machine from a desig- nated IBM location, and any rigging charges, will be paid by the Cus- tomer in accordance with IBM's then current shipping and billing practices. Title passes to the Customer for each on -order Machine on its date of shipment from IBM or on the date IBM receives the Custom- er's order for its purchase, whichever is later, and, for each instal- led Machine, on its Effective Date of Purchase. SECURITY INTEREST IBM reserves a purchase money security interest in each Machine. This interest will be satisfied by payment in full hereunder or under an IBM installment agreement and, in addition when appli- cable, by the return to IBM by the Customer of parts in respect to feature additions or model conversions that involve the removal of parts which become the property of IBM. The Customer agrees to sign appropriate documents to permit IBM to perfect IBM's security interest. SHIPMENT IBM will confirm, and amend as necessary, the Estimated Ship- ment Date of each on -order Machine. Prior to shipment, IBM will make reasonable accommodation to a Customer requested delay, and, if agreed to by IBM and the Customer, changes may be made in the configuration of Machines. THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE 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 THIS AGREEMENT AND ANY OTHER APPLICA- BLE IBM AGREEMENTS, AMENDMENTS, SUPPLEMENTS AND CERTIFICATIONS, INCLUDING THOSE ACCEPTED IN THE FU- TURE, REFERENCING THIS AGREEMENT OR EXPRESSLY MADE A PART HEREOF, WILL BE THE COMPLETE AND EXCLU- SIVE STATEMENT OF THE AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL PROPOSALS OR PRIOR AGREE- MENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREIN. Accepted by: International Business Machines Corporation Ci ty of_Fayetteville Customer By Name (Type or Prim( Authorized Signature Date BYX Authorized Signature Name (Type or Prim( Date t unng me penoo on-oroer macntnes are in transit or in posses- sion of the Customer, up to and including the Date of Installation, BM;and its insurers, if any, relieve the Customer of responsibility for all risk of loss of or damage to the Machines except for loss or damage caused by nuclear reaction, nuclear radiation or radioac- tive contamination for which the Customer is legally liable. There- after, all risk of loss of or damage to such Machines shall be on the Customer. All risk of loss of or damage to installed Machines shall be on the Customer after the Effective Date of Purchase. PRICE PROTECTION PERIOD The Purchase Price for each on -order Machine shall be IBM's generally available single unit price and shall be subject to all price increases, except that increases effective during the three-month period immediately prior to the date of Machine shipment shall not apply if the Customers order was received by IBM prior to the date of announcement of the price increase. It a price increase applies to any such Machine, the Customer may cancel the order upon written notice to IBM within one month of notification of the price in- crease; otherwise, the higher price shall be effective. If IBM'S generally available single unit price for any on -order Machine upon its Date of Installation shall be lower than the Pur- chase Price for such Machine stated in the Supplement, the Cus- tomer shall have the benefit of such lower price. The term "IBM'S generally available single unit price" does not in- clude prices for sales of Machines under terms and conditions other than those in this Agreement. The Purchase Price for each installed Machine stated in the Supplement is subject to change up to and including its Effective Date of Purchase, subject to any limitations described in any other applicable IBM lease or rental agreement. INSTALLATION Each Machine will be installed as specified by IBM. The Customer agrees to provide a suitable environment for the Machines as specified by IBM, and, except as otherwise specified by IBM, to fur- nish all labor required for unpacking and placing each on -order Machine in the desired location. Packaging materials, if any, shall become the property of the Customer. Features and model conversions will be installed on the serial - numbered machine designated in the Supplement. The Customer represents that the Customer is the owner of the machine on which any feature or model conversion will be installed or, if not the owner, has the authority from the owner to order the feature or model conversion and to have it installed on the owner's machine. Installation by IBM IBM will install machines, features and model conversions which are not identified as Customer Set -Up. The Date of Installation for a machine will be the day (Monday through Friday) following the day that 1) the machine is installed under this Agreement or under the applicable IBM lease or rental agreement, or 2) an on -order machine is available for delivery or delivered to the Customer and the Customer fails to provide a suit- able installation environment or delays installation. The Date of Installation for a feature or model conversion will be the day (Monday through Friday) following the day that the feature or model conversion is installed under this Agreement or under the • applicable IBM lease or rental agreement. The installation of some features and model conversions invol- ves the removal of parts which become the property of IBM. IBM will specify in the Supplement if removed parts become the property of IBM. The Customer will provide IBM access to the machine to com- mence installing each such feature or model conversion as soon as possible after its shipment from IBM but in no event more than one month following the later of its Estimated Shipment Date or ac- tual date of shipment. unless a shorter period is specified in the Supplement. In the event of failure by the Customer to provide IBM access to the machine within the specified period, the Customer shall retum the feature or model conversion to IBM with shipping charges prepaid, unless otherwise agreed to by IBM. If the Customer delays installation of a feature or model conver- sion (other than one which involves the removal of parts which be- come the property of IBM) more than one month from the later of its Estimated Shipment Date or actual date of shipment from IBM, its Date of Installation will be considered to be the day (Monday through Friday)one month following such date of shipment. IBM will notify the Customnr of ten Date of Installation of each Each machine, feature or model conversion identified by IBM as Customer Set -Up (CSU), and all machine elements and acces- sories, will be set up by the Customer in accordance with the in- structions furnished by IBM. The Date of Installation will be the day (Monday through Friday) following the day the machine. feature, model conversion, machine element or accessory is considered to be installed under this Agreement or under the applicable IBM lease or rental agree- ment. An on -order CSU machine will be considered to be installed on the last day of the CSU allowance period specified by IBM for such machine. The CSU allowance period, which does not include Saturdays or Sundays. commences on the day (Monday through Friday) following the date of receipt of the machine at the Custom- ers premises. However, when a CSU machine is delivered in con- junction with, and for attachment to. a non -CSU machine delivered from IBM, such CSU machine will be considered to be installed as determined in this paragraph or on the date such non -CSU machine is installed, whichever is later. An on -order CSU feature or model conversion, machine ele- ment or accessory will be considered to be installed one month fol- lowing the later of its Estimated Shipment Date or its actual date of shipment from IBM. PURCHASE OF INSTALLED MACHINES The Purchase Price stated in the Supplement is exclusive of any charges which are due or may become due under the applicable IBM lease or rental agreement. The Effective Date of Purchase tor installed Machines shall be the later of the first day of the Quotation Month or the day on which the payment required under the Section entitled "Prices and Payment" is received by IBM at its IBM Branch Office or Remit to Address shown in the Supplement. provided such receipt is not later than the last day of the Quotation Month. The Machines will be terminated under the applicable IBM lease or rental agreement as of the day immediately preceding the Effec- tive Date of Purchase. WARRANTIES Machines purchased under this Agreement will be 1) newly manufactured by or for IBM from new and serviceable used parts which are equivalent to new in performance in these Machines, 2) assembled by or for IBM from serviceable used parts, 3) Machines which have been previously installed, or 4) Machines which are presently installed with the Customer. IBM warrants that on the Date of Installation each on -order Machine will be in good working order and will conform to IBM's offi- cial published spec fitations which are available upon request. The Warranty Period for each Machine, specified in the Supple- ment, commences on its Date of Installation as defined in the Sec- tion entitled "Installation." INSTALLED MACHINES PURCHASED AFTER THEIR WARRANTY PERIOD HAS EXPIRED ARE SOLD ON AN "AS IS" BASIS. Service and Parts Warranty Commencing on the Date of Installation of each on -order machine, model upgrade and feature addition, or on the Effective Date of Purchase of each installed machine, model upgrade and feature addition, and continuing for the duration or remainder, if any, of the Warranty Period, IBM agrees to provide the availability of warranty service. at no additional charge except as set forth in this Section or in the Section entitled "Travel Expense " to keep the machines, model upgrades and feature additions in, or restore them to, good working order. This warranty service includes pre- ventive maintenance based upon the specific needs of individual machines, model upgrades and feature additions as determined by IBM and on-call remedial maintenance. Such warranty service will include lubrication, adjustments and replacement of parts deemed necessary by IBM. Parts, which may be used parts, will be fumished on an exchange basis, and the replaced parts become the property of IBM. Warranty service will be available at no additional charge during the hours specified in the Supplement. Outside such hours, war- ranty service, if requested by the Customer and provided by IeM, will be subject to charge for travel expense plus travel, waiting and service time at IBM's then applicable hourly service rates and mini- mum charges; however, there will be no additional charge for parts. Warranty service under this Agreement does not assure unlnter- Page 4 of 4 • the Customer's premises maintenance equipment and/or parts that IBM deems necessary to fulfill this waranty. 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 writ- ten confirmation by IBM, elect to have only mandatory changes, as determined by IBM, installed on the Machines. IBM shall have full, free and safe access to the Machines to pro- vide service thereon. The Customer shall promptly inform IBM of any change in the Machines' location during the Warranty Period. 11 the Warranty Period expires on a Friday or Saturday, it will be extended so that the last day of such Warranty Period will be on the following Sunday. Programming IBM warrants that, when shipped to the Customer, programming designated by IBM tor use with a Machine and for which program- ming services are available will conform to IBM's official published specifications which are available upon request. IBM does not warrant that functions contained in programming will operate in the combinations which may be selected for use by the Customer or will meet the Customers requirements. ALL OTHER PROGRAMMING IS DISTRIBUTED ON AN "AS 1S" BASIS. Additional Provisions for Features and Model Conversions IBM s warranty for each feature addition or model upgrade re- quires that the machine on which it is installed is at the then cur- rent engineering -change level, is the specific serial -numbered machine for which it was ordered and has been modified only with changes obtained from IBM specifically for that serial -num- bered machine. If these conditions are not met, IBM will attempt to install non -CSU feature additions and model upgrades on the machine, and, if such attempt results in an incorrectly functioning machine, upon Customer request and at IBM's then applicable hourly service rates and minimum charges, parts and material prices and travel expense, IBM will remove the features and/or model upgrades and restore the machine to its prior condition. If such features and model upgrades did not involve the removal of parts which became the property of ram, such features and model upgrades remain the property of the Customer. 11 such features and model upgrades involved the removal of parts which be- came the property of IBM, such features and model upgrades be- come the property of IBM and the restored parts become the property of the Customer. For a feature removal, model downgrade or reinstallation of a previously purchased feature or model conversion, a three- month parts warranty will apply to additional parts, if any, sup- plied by SBM. Additional Provisions for Machine Elements and Accessories Machine elements and accessories have a three-month War- ranty Period unless otherwise specified by IBM. During the War- ranty Period, the Customer will remove any detective or failing machine element or accessory and ship it prepaid to the desig- nated IBM location. IBM, at its option, will repair or replace such machine element or accessory and ship it to the Customer with- out charge. Additional Provisions for Machines Containing Funds The Customer is responsible for removing, controlling and re- placing or reloading funds contained in the Machines. IBM will service Machines containing funds only when the cash container cannot be opened prior to repair by IBM, in which case the Cus- tomer will remove the funds as soon as the container has been opened. Carviwn° fnr A.Idhinnnl Charms • a) failure to continually provide a suitable environment pre- scribed by IBM including adequate space, electrical power, air conditioning and humidity control; b) neglect; misuse, including use of the Machines tor pur- poses other than for which designed; c) accident; disaster, including water, wind and lightning; transportation; vandalism or burglary; d) alterations, including any deviation from IBM's Machine de- sign; e) attachments, including any interconnection to the Machine of non -IBM equipment and devices not under an IBM mainte- nance agreement; f) Machines, except those owned by IBM, under warranty from IBM, or under an IBM maintenance agreement; and g) model conversions or installation or removal of IBM features performed by other than IBM except that this subsection (g) will apply only during the three months subsequent to such Machine modification; 2) Repair of Machine damage, replacement of maintenance parts (due to other than normal wear) or repetitive service calls caused by the use of supplies; 3) Inspection of altered Machines and inspection of machines converted from one IBM model or machine type to another or on which an IBM feature is installed or removed when such ac- tivity was performed by other than IBM; 4) Replacement or addition of parts and increase in service time, associated with the installation by IBM at an engineering change, required due to model conversions or installation or. removal of IBM features performed by other than IBM; 5) Rearrangement or relocation of Machines and provision of necessary materials; 6) Replacement of a part not furnished for the Machine by IBM with a directly interchangeable IBM maintenance part, and any increase in service time associated with such activity, except that IBM will not replace any part which is included in an altera- tion; and 7) Repair of a Machine caused by non -IBM representatives per- forming maintenance or repair of such Machine. Exclusions The warranties under this Agreement are in lieu of any conflict- ing statement of warranty contained in a Machine shipment. The warranties under this Agreement do not include 1) furnishing supplies, painting or refinishing the Machines or furnishing mate- rial therefor, 2) electrical work external to the Machines, 3) instal- lation, maintenance or removal of alterations or attachments to the Machines, and 4) any service which is impractical for IBM to render because of alterations in, or attachments to, the Machines. IBM does not warrant that the operation of Machines or prog- ramming will be uninterrupted or error free or that all program- ming errors will be corrected. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING. BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FEYNESS FOR A PARTICULAR PURPOSE. OTHER PRODUCTS AND SERVICES Following the Warranty Period, IBM will provide, upon request and at tam's charges and terms then generally in effect, mainte- nance service and maintenance parts for the Machines and programming services for programming as long as such services and parts are generally available. Unless such activities are pro- vided under another written agreement between the Customer and IBM, they shall be subject to the applicable terms and condi- tions of this Agreement. In addition, IBM offers other products and services at separate charges under applicable written agreements. The Customer may contract with IBM for such other products and services, as able for sale and which may be suitable for use on or with the Machines. My replaced: parts become the property of tam. IBM makes no representation that engineering changes announced in the future will be suitablefor use on or with the Machines. PATENTS AND COPYRIGHTS IBM will, at its expense, defend the Customer against any claim that any Machines or programming supplied hereunder in- fringe a patent or copyright in the United States or Puerto Rico, and will pay all costs, damages and attomey's fees that a court finally awards as a result of such claim. To qualify for such de- fense and payment, the Customer must: 1) give IoM prompt written notice of any such claim; and 2) allow IBM to control, and fully cooperate with IBM in, the de- fense and all related settlement negotiations. IBM's obligation under this Section is conditioned on the Cus- tomer's agreement that if the operation of the Machines or prog- ramming become, or in IBM's opinion are likely to become, the subject of such a claim, the Customer will permit IBM, at its option and expense, either to procure the right for the Customer to con- tinue using the Machines or programming or to replace or modify them so that they become noninfringing; and, if neither of the foregoing alternatives is available on terms which are reasonable in IBM's judgment, the Customer will return the Machines or prog- ramming on written request by IBM. IBM agrees to grant the Cus- tomer a credit for returned Machines as depreciated. The depre- ciation shall be an equal amount per year over the life of the Machines as established by IBM. IBM shall have no obligation with respect to any such claim based upon the Customer's modification of the Machines or programming or their combination, operation or use with ap- paratus, data or programs not fumished by IBM. This Section states IBM's entire obligation to the Customer re- garding infringement or the like. LIMITATION OF REMEDIES IBM's entire liability and the Customer's exclusive remedy shall be as follows: In all situations involving performance or nonperformance of Machines or programming furnished under this Agreement, the Customer's remedy is 1) the adjustment or repair of the Machine or replacement of its parts by IBM, or, at IBM'S option. replacement of the Machine, or correction of programming errors, or 2) if, atter repeated efforts, IBM is unable to install the Machine or a replace- ment Machine in good working order, or to restore it to good working order, or to make programming operate, all as war- ranted, the Customer shall be entitled to recover actual damages to the limits set forth in this Section. For any other claim concem- ing performance or nonperformance 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 re- cover actual damages to the limits set forth in this Section. IBM's liability for damages to the Customer for any cause whatsoever, except as otherwise stated in this Section, and re- gardless of the form of action, whether in contract or in tort in- cluding negligence, shall be limited to the greater of $100.000 or the Purchase Price stated in the applicable Supplement for the specific Machines that caused the damages or that are the sub- ject matter of, or are directly related to, the cause of action. The foregoing limitation of liability will not apply to the payment of costs, damages and attomey's fees referred to in the Section en- titled "Patents and Copyrights," or 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 any damages caused by the Customers failure to perform the Customers responsibilities, or for any lost profits, lost savings or other consequential damages, even if IBM has been advised of the possibility of such damages, or for any claim by the Customer based on any third party claim except as provided in the Section entitled "Patents and Copynghts " or for any damages caused by performance or non- performance of Machines or programming located outside the United States or Puerto Rico, nor will IBM be liable for loss of funds contained in, dispensed by, or associated with any Machine under this Agreement. Agreement entitled "Installation," "Warranties; ":other Products and Services" and "Patents and Copyrights" are replaced in their entirety by the following in respect to non -IBM equipment. Installation The Customer shall provide a suitable installation environment with facilities as prescribed by the manufacturer. Arrangements for installation will be the responsibility of the Customer. IBM has no responsibility for installation under this Agreement nor for any installation perforated by the manufacturer. Warranties NON -IBM EQUIPMENT IS NOT WARRANTED BY IBM AND IS SOLD BY IBM TO THE CUSTOMER ON AN "AS IS" BASIS. THERE ARE NO IBM WARRANTIES EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. HOWEVER, THE MANUFAC- TURER'S WARRANTY, IF ANY, APPLIES, AND THE CUS- TOMER MUST DEAL WITH THE MANUFACTURER ON SUCH MATTERS. Other Products and Services The Customer is responsible for arranging for maintenance service for non -IBM equipment. Patents and Copyrights IBM shall have no liability to the Customer regarding patent or copyright infringement for non -IBM equipment. GENERAL This Agreement and any on -order Machines are not assigna- ble to other than an IBM affiliate without the prior written consent of IBM. Any attempt to assign any of the rights, duties or obliga- tions of this Agreement without such consent is void. The Customer agrees to comply with the provisions of any End User Certification contained in any Supplement to this Agree- ment, or in any volume procurement or s ngle shipment quantity discount amendment to this Agreement. IBM may, upon written notice, modify the terms and conditions of this Agreement. Any such modification will apply on the effec- tive date specified in the notice to all orders for purchase which are accepted by IBM on or after the date of notice. In addition. IBM may modify this Agreement by setting forth such modification in a Supplement which is subsequently accepted by the Customer as provided herein. Otherwise, this Agreement can only be mod- ified by a written agreement duly signed by persons authorized to sign agreements on behalf of the Customer and of IBM. and variance from or addition to the terms and conditions of this Agreement in any order or other written notification from the Cus- tomer will be of no effect. 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. IBM is not responsible for failure to fulfill its obligations under this Agreement due to causes beyond its control or to provide any services hereunder for Machines or programming located outside the United States or Puerto Rico. No action, regardless of form, arising out of this Agreement may be brought by either party more than two years atter the cause of action has arisen, or, in the case of an action for non- payment. more than two years from the date the last payment was due. If the Customer fails to pay the Purchase Price due hereunder and IBM repossesses a Machine as provided by law, the Custom- er agrees to pay all costs and expenses of repossession, includ- ing reasonable attomey's fees. This Agreement is governed by the laws of the State of New York. Name and Address of Customer. City of Fayetteville 113 W. Mountain St. Fayetteville, AR 72701 IBM Branch Office Address: 400 W. Capitol Ave. Suite 1200 Little Rock, AR 72201 Installment Payment Agreement (State and Local Govemment) Reference Agreement No.: Reference Supplement Dated: Agreement No.: IBM Branch Office No.: MK6 Customer No.: 3014174 8.08 International Business Machines Corporation (IBM) and the Customer agree that this Installment Payment Agreement supplements and amends the referenced Agreement for Purchase of IBM Machines and its referenced Supplement with respect to the following IBM machines features, model upgrades, machine elements and/or accessories (hereinafter called "Machines" unless the context requires individual reference). IBM Plant Order or Purchase Machine Serial Model or Price $ Ory. Type Number (•) Feature Description (Net Unit Price) Amount S 1 6808 0104115 60 Copier 1 6852 2029044 1 Collater (•) An "•" Indicates Machine Serial Number. Statement of Transaction 8,078.50 8,078.50 922.50 922.50 TOTAL: $ 1. Cash Price (if this were a cash sale) 2. Trade -In Allowance Credit (from IBM trade-in agreement) 3. Cash Down Payment 4. Total Down Payment (Sum of Items 2 and 3) 5. Unpaid Balance of Cash Price (Item 1 minus Item 4) 6. State and Local Taxes, if applicable 7. Amount to be Financed (Sum of Items 5 and 6) 8. FINANCE CHARGE (Time Price Differential on Item 7). Finance Charge consists of interest at an ANNUAL PERCENTAGE RATE of 9.5 % 9. Tax on Finance Charge, if applicable, (payable in first installment) J. Total Amount of Remaining Payments (Sum of Items 7, 8 and 9) 11. Total Time Sale Price (Sum of Items 4 and 10) 2120-279143 (Rev. 07/90) $ $ 9001 00 9001.00 9001.00 N/A N/A N/A 460.04 9461.04 1363.44 N/A $10824.48 $10824.48 4 Dana 1 al 6 if any, (a) upon the Date of Installation of the Machines or (b) With respect to installed Machines, on the Effective Date of Purchase, and agrees to pay the Total Amount of Remaining Payments in consecutive Periodic Payments, including Finance Charge, for the Fiscal Periods as set forth below in either Payment Plan I or Payment Plan II. Fiscal Period 1 2 3 4 5 6 PAYMENT PLAN 1 Periodic Payment (Annual) (Biennial) N/A PAYMENT PLAN 11 Periodic Payment (Total of Monthly Fiscal Payments for Period Fiscal Period) 1 300.68 2 3,608.16 3 3,608.16 4 3,307.48 5 6 Monthly Payment 300.68 300.68 300.68 300.68 Finance Charge (Included in Payment) Total Finance Charge for Fiscal Period (Included in Payments) 00 747.82 463.94 151.68 The Periodic Payment for Period 1, which includes the Tax on Finance Charge, if applicable, is due on the first business day of the month following the Date of Installation or the Effective Date of Purchggse, and the Periodic Pay- ments for Periods 2 through are due on the first business day of each succeeding Fiscal Period. If Payment Plan I has been chosen, payments must be made in full on the due dates. If Payment Plan II has been chosen, payments must be made in equal consecutive monthly installments, except that the first installment will include the Tax on Finance Charge, if applicable, beginning on the due dates and continuing on the corresponding day of each month of each Fiscal Period until fully paid. Payments include Finance Charge in the appropriate amount in- dicated above. The Customer having been offered the choice of pur- chasing at the foregoing Cash Price (plus applicable State and Local Taxes) or at the Total Time Sale Price has elected to purchase at such Total Time Sale Price. 2120-2791-03 (Rev. 07/84) adjusted by IBM to retlect the snorter payment perioa. All remittances are to be made to the IBM Branch Office address listed herein unless otherwise requested by IBM. Assignments This Installment Payment Agreement is not assignable by the Customer, nor may the Customer sell, transfer, sub- stantially modify, relocate or dispose of any or all of the Machines without prior written permission of IBM. In no event may the Machines be relocated outside the 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 covenants and 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 any or all of the Machines; (b) it will keep the Machines in good repair and operating condition; (c) it will promptly pay all taxes, interest and other charges when levied or assessed upon the Machines or their operation or use, or upon IBM, exclusive of taxes based on IBM's net income, in connection with this Installment Payment Agreement; (d) it will promptly satisfy all liens against the Machines; and (e) there are no mortgages, pledges, encumbrances, security interests, liens or charges of any kind by any party other than IBM or assigns upon the machines on which features, model upgrades, machine elements or accessories will be installed subject to this Installment Payment Agreement. Insurance 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, acertificate 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 Custo- mer pursuant to the Section entitled "Casualty Occur- rences." Casualty Occurrences A Casualty Occurrence shall be deemed to exist if any of the Machines shall be lost, stolen, irreparably damaged or destroyed or otherwise rendered permanently unfit for use from any cause whatsoever prior. to the payment in full of the Total Time Sale 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. The Casualty Value of each Machine suffering a Casualty Occurrence shall be the sum of the unpaid balances of the State and Local Taxes, Unpaid Balance of Cash Price and Finance Charge at the time of such Casualty Occurrence and attributable to such Machine. The Finance Charge shall be adjusted by IBM to reflect the shorter payment period. Any money so paid shall be applied by IBM to reduce installments thereafter falling due so that such installments represent only the payments due for the remaining Ma - Page 2 01 4 ' Events'of Default' • • Any one or more of the following are Events of Default: (a) the Customer fails to pay when due any amount required to Se paid by the Customer hereunder and such failure shall continue for a period of seven days after the due date, except as provided in the Section entitled "Funding"; (b) the Customer fails to procure and maintain insurance as required in this Installment Payment Agreement; (c) the Customer fails to perform any other provisions hereunder or violates any of the covenants or agreements made by the Customer hereunder, and such failure or breach shall continue for a period of 15 days after written notice is received by the Customer from IBM; or (d) any insolvency proceedings of any character, voluntary or involuntary, shall be instituted by or against the Customer. Any failure of IBM to require strict performance by the Customer or any waiver by IBM of any provision of this Installment Payment Agreement shall not be construed as a consent or waiver of any other breach of the same or of any other provision. • Remedies. If an Event of Default shall have occurred and be continuing, IBM or assigns may, to the extent permitted by law, (a) recover from the Customer any and all amounts then due and to be become due; (b) take possession of any or all of the Machines, wherever located, without demand or notice and without any court order or other process of law, or render them unusable, and retain all prior payments as partial compensation for their use and depreciation; (c) require the Customer to assemble the Mach'nes and make them available to IBM, freight prepaid. at any place in the :ontinental United States specified by IBM; and/or (d) incur reasonable attorney's fees and legal expenses in exercising any of its rights and remedies upon default which the Customer hereby agrees to pay. Upon repossession of such Machines, IBM may sell, lease or otherwise dispose of any or all of the Machines in a commercially reasonable manner, with or without notice and by public or private proceedings, and apply the net proceeds thereof towards the amounts due under this Installment Payment Agree- ment after deducting the reasonable expenses of retaking, holding and preparing for such disposition and deducting of the unpaid Total Time Sale Price: In the event IBM repossesses and' removes a feature, model upgrade, machine element or accessory, it shall be the Customer's responsibility to restore any remaining information processing equipment to good working order. The Customer agrees that IBM shall have no liability for damages caused by the repossession of such a feature, model upgrade, machine element or accessory or by the Customer's failure to fulfill such responsibilities. Further, IBM shall have no obligation to reimburse the Customer, user or any other secured party for the cost of repair resulting from such removal. IBM may pursue any other remedy available at law or in equity, including, but not limited to, seeking damages, specific performance and an injunction. No right or remedy is exclusive of any other provided herein or permitted by law or equity. All such rights and remedies shall be cumulative and may be enforced concurrently or individ- ually from time to time. 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 Periodic Payment for any future Fiscal Period, the Customer will not be obligated to pay the remainder of the Total Time Sale 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 nonappro- priation at the earliest possible time. In the event that funds are not appropriated as provided above and the Customer is unable to make further pay- ments 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 the Customer to IBM as partial compensation for machine use and depreciation; provided, however that upon the Customer's request, the 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 the last Fiscal Period for which payment has been made hereunder. i Dana 1nla Security Interest and Location of Machines To secure the payment of the.Total Time Sale Price, IBM reserves a purchase money security interest in each of the Machines, and the Customer hereby grants a security •nterest in any substitutions, replacements, accessions, and additions thereto and the proceeds thereof. Such interest shall be satisfied by payment in full of the Total Time Sale Price A copy of this Installment Payment Agreement may be filed with appropriate state and local authorities, at any time after signature by the Customer, as a financing statement in order to perfect IBM's security interest. Such filing does not constitute acceptance of this Installment Payment Agreement by IBM. The Customer also shall execute from time to time, alone or with IBM, any financing statements or other documents and do such other act or acts considered by IBM to be necessary or desirable to perfect or protect the security interests hereby created. The Machines shall remain personal property, not become fixtures to real property, and be kept at: 113 W. Mountain St. (Street address) Fava) ttevillc, Alt ulnty (State) where IBM may inspect them at any reasonable time. General If'the Net Unit Price for any Machine is adjusted as provided in the referenced Agreement, or the trade-in allowance for any trade-in equipment is adjusted as pro- vided in an applicable IBM trade-in agreement, Items No. 1 through 11 in the Statement of Transaction and the payments herein agreed to be paid shall be adjusted, and :his Installment Payment Agreement shall be deemed to be amended accordingly. The terms and conditions of this Installment Payment Agreement shall prevail notwithstanding any variance with the terms and conditions of the referenced Agreement. Should this Installment Payment Agreement and/or the referenced Agreement be held by the courts to be invalid or Received by IBM at Fort SMith/MK6 Branch Office Name/Number By Manager's Signature Name (Type or Print) Date Accepted by: International Business Machines Corporation 3y Authorized Signature unenwrceauie, uta parties agree mat ine macmnes snail De deemed to have been installed under IBM's State and Local Government Lease Plan pursuant to the terms and condi- tions of IBM's applicable agreement and/or amendment at IBM's applicable Lease Plan Monthly Charges, commenc- ing 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 will 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. In the event that the affected Machines are not available from IBM under a lease or rental agreement. at the time of such holding, the Customer and IBM will agree upon a fair and equitable Lease Plan Monthly Charge for the period prior to and following such holding and, other- wise, the provisions of this Section shall apply. If any provision or provisions of this Installment Payment Agreement shall be held to be invalid, illegal or unenforce- able, and the preceding paragraph does not apply, the validity, legality and enforceability of the remaining provi- sions shall not in any way be affected or impaired thereby. THE CUSTOMER ACKNOWLEDGES THAT THE CUSTO- MER HAS READ THIS AGREEMENT, UNDERSTANDS IT, AGREES TO BE BOUND BY ITS TERMS AND CON- DITIONS, AND BY THE CUSTOMER'S SIGNATURE BELOW, ACKNOWLEDGES THAT THE CUSTOMER IS LEGALLY AUTHORIZED TO ENTER INTO THIS AGREE- MENT. FURTHER, THE CUSTOMER AGREES THAT THIS INSTALLMENT PAYMENT AGREEMENT, THE REFERENCED AGREEMENT AND SUPPLEMENT AND ANY APPLICABLE IBM TRADE-IN AGREEMENT CON- STITUTE A SINGLE AGREEMENT AND THE COM- PLETE AND EXCLUSIVE STATEMENT OF THE AGREE- MENT BETWEEN THE CUSTOMER AND IBM, WHICH SUPERSEDES ALL PROPOSALS OR PRIOR AGREE- MENTS, ORAL OR WRITTEN, AND ALL OTHER COM- MUNICATIONS BETWEEN THE PARTIES RELATING TO THE SUBJECT MATTER HEREOF. City of Fayetteville h1/ By f Customer Authorized Signature Name (Type or Print) Date Name (Type or Print) Date Supplement to Agreement for Purchase of 2 c E `v c o C 0 e r CO O P. o V N 0) C _: t C5 2 -. d C rn7 r► _ PalaalaS ad"1 V .. - ,. 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CL — C Y. • • 1- tr v cs '/. - T L • - International Business Machines Corporation E 0 U Customer .crew to the following trans/schen(*) and the Incorporation of the Xerox standard terns and conditions Mating thereto Supplls and/or Sinlce described brow and In the attachments hereto: 0 Equipment Sen/as 0 Installment Purchase of Equipment 0 With Maintenance 0 Equipment Ptndtasw 0 with Maintenance 0 Financed Equipment Configuration Change ,mer Name -.rent Co. (It different) Box .FRoutmg Street MOM City 0111 - o f r -AY elle v114•6 .Attu 1i 6L.OG Installed At Customer Name - . - - - Name Overflow - Floor, Room. Routing Street Address IOt me-acgWtltlers Of Xeres Equlpmetn, ❑ MaMNnana Only 0 Software License 01Term Lane General Orde Information: City. Xerox Product (Ser. It i1 In place) [corn \ 0*5 SAM �sctr. te'` / u tto [Nps Xeres [woe Xeres Xeres Xerox Xerox Meters 1. 3. 2. ' List Price. Total List $ trio lorio A. From Attached Order Agreements B. Total !bitting Equipment to be Replaced (List Serial Number) Tax Exempt 0 No 0 Yes (Attach Exemption Certificate) Customer Require Purchase Order Number ❑ No 0 Yet Customer Purchase Order Number Equipment Maintenance Earliest Customer Acceptance Date Master Purchase Agreement 1 Purchase Order References are for Billing Purposes Only. Lea Deduction Opt. to Parch. Tiede -1 'Iona (11'1 InIIMI Supply Order City. Reorder Number Prepacked supplies will be shipped with selected Equipment aria blued to the customer at the °re- packed once in elect at the time ni insulation. Prepacked supplies will be removed, tree of charge. and with lull credit it requested by Customer. Customer Requests Full Credit Supply P.O, Xerox Supply Cont Omer Net Price • B. Total Net ' Price C Ceti Dow, Paymem I D Cash Prim Beincipal lem. - (B -Cil . E. Finance Charge or Interest al rFc 10293 F.TiIDm•e EIBalance i G Tone Sale Rim (C • FI Monthly Installments of s 1293 ( Sates Us Prim (ExPlaceusive ments 1 Total Nel vice Placement. Maintenance and Supply Crimea) Term of Agreement (Check One Plant ❑ 24 Monte 0 48 Monte 0 Othr ❑ 36 Monte 0 60 Month Original Customer/Contract 195 10—CL �/�) /�'�1 O Purchase Option Amount f {E — " Purchase Option Amount From Attached Agreement(sI f Copy Allowance Period in Annual Semi u11 3g /W O Copy Charges win be aped separately m accordance wan the Ma'nienan. Price List indicated below. Copy Allowance Monthly Minimum Lease Payment j From Attached Order Agreement(.) Tote Monthly Minimum Lease Payment !Enchrere of Sales/Use Tax and Placement asp) 3�ygr' own• a • •+-T ortForEguipmentsentcerOrMalntenanceOPMonthlySofwarsLicenser-• _. Price Plan Description Initial Term Billing Cycle Contract Number Gov't. Firm Contract Option 0 Gov't. Fiscal Year Option 0 Govt Fiscal Year Begins J_/_ K-12 Summer Option Equipment may be newly manufactured. remanufactured or previously installed as described In the Xerox Price List or may be in -Place. Customer must initial to acknowledge receipt of the Xeres Price Lit. Terms and Conditions and other documents designated below: R�[ t�f�T .Q1 inndn�( mita Xerox Price List eX, ` s� b 1 /�'1 dated\ f'. _INC. Term Lease Terms and Condmons dated 111:12‘.455 aL� `�F� . Other: Xerox Mont, Pn. List a dated F. Full Service Maint. Terms and Cond. dated iV 1 CTD —L, Gov'. Contract/Price Luta dated G Standard Maint. Terms and Agreements dated A. Equipment Order,Agreement(s) dated B. Equipment Services Terms And Conditions dated C. Equipment Purchase terms and Conditions dated_ D. Installment Purchase Terms and Conditions dated_ *tomer IPleen Pr,ni Signature Title N Co 'pment Trade -In Terms and COndnlons dated I. Software License Terms and Conditions cisme J. Extended Service (Warranty) Amendment dated K. Negotiated Contract Date Xerox Corporation Signature Tine dated Sales Rep. OrdeTy,cknowledgerne ;arm" ;ease Purchase insto est No or 95 Accepted tor Xerox fl vase n Mn Indian date /Irwin Anrtiment rel ... e Simptles and/or S.inled dacriWa below and In the sttacemants hereto: ❑ Equipment Smoked 0 Installment PureNga Mttqulpwant 0 With Maintenance ❑ Equipment Plwetslis 0 With Maintenance 0 Financed Equlpm.M Configuration Change -i To 'other Name ant Co. to diflerentl Box eRouing Street Address City CSC I t-!r`(.fs776 t 4)6 QaL\DE 9T iMi ev G 1 Order Information: Oty. Xerox Product (Ser. aif in place) 1-02 VAS Xeres SMw [ems Kemp Keep Kemp Reap Xeres Meters 1. 3. 2. a. pita 'List Pnce Instated Al Customer Name Name Overflow Flop. Room. Routing Street seeress City State Zip ❑ Maintenance Only ❑ Software Menge Term Lease • Total List $ Lee Deductions: Opt to Purch. Tradnln 5bb0 s to6o A. From Attached Order Agreemema B. Total 510 60 VII' Existing Equipment to be Replaced (List Serial Numbers) Tax ExempttNo 0 Yes (Attach Exemption Certificate) Customer Requires Purchase Order Number 0 No 0 yes Customer Purchase Order Number Equipment Maintenance Earliest Customer Acceptance Date Mater Purchase Agreement e Purchase Order Relerences are for Billing Purposes Only. /_/ Initial Supply Order Ory. Reorder Number Prepecked supplies will be shipped with selectee Equipment and billed to the customer at the pre - packed Mite in etlett at IM time 01 installation Prepacked supplies will be remover). tree 01 charge. and vain lull credit it requested by Customer. Customer Requests Fun Credit Supply P.O.* Xerox Supply Conte Other Net Price 563gt B. Total Net Price CC hDown Payment D. Cash Prim (Principal Balance . (B -Gil eh E. Finance Charge or Interest • • So3gi' F.Time Balance (0 • EI G.Tme Sal Prim IC • F) Monthly Installments of $ ITotal Net Price (Exclus e of SAIe,Nse Taa. Placement Maintenance and Supply Cnageal Term of Agreement (Check One Plan) ❑ 2a Month 0 as Month ❑Other 36 Month ❑ 50 Month On incl CustomerfContrect a95 Purchase Option Amount S Purchese Option Amount From Attached Agreenenns) S Copy Allowance Pence �O SnnuMonthly 11Annual D al S03, Wu Copy Allowance 39)000 Copy Charges win be b led separately in accordance win Ina Maintenance Price WI indicated plow Monthly M:renum Lease Parnell S 2.b$, 52 From Attached Order Agreemenlisl Total MontNy Minimum Lease Payment p• n L2. Sz '.Eadu,ive of Seleillse Tax and Placement Chgs) fwd' o omple et hlirS -. • F • • qW • - .O . ' hit M. t Iy:S• . 1.1.r Price Plan Description Initial Term Billing Cycle Contract Number Gov't. Firm Contract Option ❑ Gov't. Fiscal Year Option 0 Gov't. Fiscal Year Begins J_/— K-12 Summer Option Equipment may be newly manufactured. remanufactured or previously Installed a described In the Xerox Price List or may be in -Plate. Customer must Initial 10 acknowledge receipt of bre Xerox Price List Terms Inc Conditions and o tier document, designated helots: initials Xerox Price List .X Iot-b3`t Xerox Maint. Price List a dated Goer. ConlractiPrice Lista dated A. Equipment OrdenAgreemennsl dated B Equipment Services Term, and Conditions dated C. Equipment Purchase Terms end Conditions dated O. Installment Purchase Terms and Conditions dated ^.ustomer ' (Please Print) initials dated e sic/ _ E Term Lease Terms and Conditions deed to t r F. Full Service Main:. Terms and Cone. dated G Standard Ment Tem, and Agreements dated - R Equ pment Trade -In Terms and Conditions dated 1. Software License Terms Inc Conditions dated J. Extended Service (warranty) Amendment dated K. Negotiated Contract 1 Signeturex Title Delivery Contact Xerox Corporation Signature Date Title Phone Ext. dated 0 leilga Sales Rep- Order AEfnowledgemi+rC Installment a mil ase Customer No 95 Accepted for Xero, Date Site Cleared: 0 Yes 0 NO Order Agreement of WPOmer agree to use lOuoanng ranascnon%sl meq me .ncorpura.rwn or .m "arra flatware surf. ,n, ..•.................ry ... . ... Supplies and/or SerYlce described below and in the attachments hereto: - d ❑ Maintenance Only 0 Software License %Term Leah ❑ Egtdpmem Services. ❑ Equipment Pwthne: 0 With Maintenance To Diner Name ant Co. (II different) Box a/Routing Steel Arms ❑ Installment Purchei er Egllpment 0 With Maintenance ❑ Financed Equipment Configuration Change -1 et/ r (& J h l Cmlomer Name h.\1.1 .b.LROG City t ( E+-ri e. \ WG General Order Information: • Oly. Xerox Product (Ser. a It in place( \ items \0b5 Mame Pros Brea Items Perm Roma Kama Rraa Meters 1. 3. 2. 4. • Mame Overflow Floor. Room. Routing Street Address Gity List Price '9S A. From Attached Order Agreements B. Total `Existing Equipment to be Replaced (List Serial Number) Tac Exempt 0 No 0 Yes (Attach Exemption Certificate) Customer Requires Purchase Order Number 0 No 0 Yes Customer Purchase Order Number Equipment Maintenance Earliest Customer Acceptance Date Master Purchase Agreement or Purchase Order References are for Billing Purposes Only. /_/ Total List S 3395 KP.repaltl$ofwer Tkit Less Deductions: Opt. to PurcIi. Trade -In 1052 3395 \051- Ininat Supply Order Oty. Reorder Number Prepacked Supplies will be snippet] with Selected Equipment and billed to the customer at the pre - packed price In etlecl at the time dl installelion. Prepecked supplies will be removed.lroe or Charge. and with lull credit if requested by Customer. Customer Requests Fun Credit Supply P.O.a Xerox SupptY COMA State Zip Other omplets.ThlsSeetlon:Fon Equipment SentcesOrMelntenenewOrMonthlpSottwarerLleensew: : Price Plan Description Govt. Firm Contract Option 0 Initial Term Billing Cycle _t :Net Price 8. TPriceotal Net 23Lis 3 C Ce Dr Payment 23 t1-3 D. Cash Prim (Principal Balance (B- CI) ; E. Finance Charge or Interest at o%a • F.Time Balance (D • Et 4 Tine SN Pace IC •F) Monthly Installments of li (Total Net Price (Exclusive of (` Salesll/se Tax. Placement. Maintenance end Su:MN CMrgesl iseillttlreVafirizals Term el Agreement (Check One Plan) �❑a24 Month 0 48 Month 0 Other JK38 Month 0 60 Month Original Customer/Contract x95 Purchase Option Amount r Purchaes Option Amount From Attached Agreemenl(s) $ Copy Allowance Period I Copy Allowance Monthly Minimum S O Monthly ami Annual a nnual Lease Payment OX, a1t13 Copy Cringes all be bi led sem Lely in accordance mon IM Maintenance Prica Lisl indicated beloa. From Attached Order Agreemenns) Total Montry Minimum Leans Payment (Exclusive of Sales/Use Tax and Placement Chgs) Contract Number Gov't Fiscal Year Option 0 Gov't. Fiscal Year Begins _-/—/_ K-12 Summer Option Equipment may be newly manulaC,ured. remanutactured or previously installed as deathbed in the Xerox Price Ust or may be In -Place. Customer mutt Initial to acknowledge receipt of the Xerox Price LSI Terms anti Conditions and other documents designated below: imams Inmate Xerox Price Lista gal` ki,31 Dated 1 Qjp _h. Term Leese Terms and Conditions detest 1-3 he 85 _�1sOtner. Xerox Matnl. Price Lista data F. Full Service &4aint. Terms and Cond. dated 1 �_ `—`•W ��C„ G Standard Main,. Terms and Agreements dated ✓� Gev 1. Contract/Price List a dated A. Equipment Order/Agreemenllsl dared B Equipment Services Terms one OOMniona dated - C. Equipment Purchase Tema are Conditions dated O. Installment Purchase Terms and Conditions dates T 'lstomer IPwase Pane ISignature Title Wali.,.•., rnn•anr M Equipment Trade -In Terms and Conditions dated Software License Terms and Conditions dated J Extended Service (Warranty) Amendment dated K . Negotiated Contract Xerox Corporation Signature Date Title Phone Ext.. dated 0 Sales Rep Order IKnowleegeme n 13 Imunment Purchase Or n5 Term Lena Commit. w0 Dal Accepted for Xerox Date Site Cleared: 0 Ves 0 No Order Agreement Of XEROX COMMERCIAL TERM LEASE TERMS AND CONDITIONS XEROX CORPORATION, XEROX SQUARE, ROCHESTER, NEW YORK 1 THIS AGREEMENT MAY NOT BE CANCELLED OR TERMINATED BY CUSTOMER PRIOR TO THE END OF ITS TERM EXCEPT AS EXPRESSLY PROVIDED FOR HEREIN. 1. AGREEMENT A. The Xerox Order Agreement, Xerox Commercial Term Lease Terms and Conditions and the applicable Xerox Price Lists and any other documents, receipt of which is acknowledged by Customer's initials on the Xerox Order Agreement shall constitute the entire agreement between Customer and Xerox regardless of inconsistent or additional understand- ings or commitments. or terms and conditions in Customer's purchase orders or other documents submitted to Xerox. This Agreement may be amended only by a written instru- ment executed by both parties. B. Except where credit approval has been previously granted by Xerox with respect to the transaction covered by this Agree- ment. Customer agrees that Xerox Credit Department may conduct a credit investigation. N credit approval is not granted. notwithstanding delivery of Equipment. Xerox may revoke this Agreement by written notice to Customer within sixty (60) days of its Effective Date. It revocation pertains to purchase of In -Place Equipment, Customer's prior contrac- tual obligations relating to the Equipment remain in full force and effect. 2. EQUIPMENT INSTALLATION A. Equipment other than In -Place Equipment will be newly manufactured. remanufactured or used as indicated on the price list. B. Xerox shall install Equipment at the installation address identified on the Equipment Order Agreement unless (a) Cus- tomer requests delivery without installation; (b) Equipment is designated as direct shipped or Customer Installable on the applicable Xerox Price List; (c) Equipment is to be shipped to a location where Xerox does not service equipment furnished pursuant to the Xerox Equipment Services Agree- ment; or (d) Customer has not prepared installation site in accordance with electrical, space. environmental, and other requirements contained in the applicable Price Lists or appro- priate data sheet. C. For Xerox installed Equipment, Equipment Installation Date will be the date on which Xerox determines Equipment to be operating in accordance with Xerox standards as demon- strated by Xerox successfully running diagnostic routines. For In -Place Equipment. Equipment Installation Date will be the date Customer executes the Xerox Order Agreement pertaining to the purchase of such Equipment. For Equipment designated as Customer Installable on the Price List. the Equipment Installation Date will be three (3) days atter ship- ment. For other Equipment. the Equipment Installation Date will be the date Customer receives Equipment. D. Customer agrees to keep Equipment at the Installation Ad- dress(es) and not move it from that location without prior written consent of Xerox. which shall not be unreasonably withheld. Customer agrees to be responsible for all costs associated with relocation initiated by Customer. Costs will include all applicable installation. removal and special rigging charges at the rates in effect at time of relocation. 3. EQUIPMENT USE A. Customer agrees to use Equipment in a careful and proper manner. Equipment will not be serviced by other than Xerox. Xerox shall have the right to inspect Equipment at any rea- sonable time, wherever located. B. Customer agrees to accept the responsibility for (i) selection of Equipment to achieve Customer's intended results; (ii) use of Equipment; and (iii) results obtained from Equipment. C. With respect to Equipment in which developer is utilized, 4644 applicable service policy. Xerox will remove used Xerox de- veloper from the Customer's premises unless Customer specifically requests otherwise. D. Customer agrees to make available Key Operators or Sys- tems Administrators for Equipment. Training, if any, will be provided in accordance with the applicable Price List in effect on acceptance of the Order Agreement. 4. LIMITED WARRANTY A. During the Term Lease, except as set forth below, Xerox will, without additional charges, make all necessary adjust- ment. repairs and parts replacement to keep Equipment and. if applicable. Upgrades in good working order. Replaced parts will become the property of Xerox. B. Xerox will not be required to perform maintenance made necessary due to accident. failure of electrical power. unau- thorized Equipment alterations. tampering, causes other than ordinary use. interconnection of Equipment by electrical. electronic, or mechanical means with noncompatible equip- ment, or failure to use Xerox Operating System Software or use of unauthorized modified Xerox Operating System Software. If Xerox chooses to provide maintenance which is made necessary as a result of any of the above -enumerated causes. such maintenance shall be billed to Customer at Xerox' then current Time and Materials rates. C. Xerox will not provide maintenance if the Equipment is in an area which does not conform to Xerox' published space. electric or environmental requirements. Customer agrees to provide ac- cess to a telephone, adequate storage space and adequate working space for the use of Xerox Service personnel at no charge to Xerox. Customer agrees to provide Xerox access to the Equipment and shall have a representative on-site when Xerox personnel are performing maintenance. D. Xerox shall only provide maintenance within the continental limits of the United States unless otherwise indicated in the applicable Xerox Price List. E. Customer claims concerning Xerox' failure to repair Equip- ment or Upgrade(s) pursuant to warranties set forth above must be made in writing addressed to the Service manager of the Xerox location providing maintenance hereunder. Such claim must be sent to Xerox no later than thirty (30) days after Customer learns the facts on which such claim is based. 5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY AND REMEDY A. THE WARRANTIES EXPRESSED HEREIN ARE EXCLU- SIVE AND IN LIEU OF ANY IMPLIED WARRANTY OF MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE OR OTHER WARRANTY EXPRESS OR IMPLIED. B. The liability of Xerox for breach of any warranty hereunder is limited to the repair or replacement of Equipment or supplies on which the liability is based. If Xerox agrees that it cannot repair or replace Equipment other than Engineering and Graphics Products Equipment. Xerox shall replace the Equip- ment with a different model of equipment with comparable capabilities and Xerox shall increase the maintenance com- ponent of the minimum monthly lease payments (including meter charges, if applicable) payable hereunder to the then current maintenance component of the minimum monthly lease payments for the replacement equipment and Cus- tomer shall pay such increase for a term equal to the re- maining term of this Lease. 11 Xerox agrees that it cannot repair or replace Engineering and Graphics Products Equip- ment. Xerox will accept the return of Equipment and termi- 'Operating System Software or supplies covered by or fumrshed under this agreement. whether in contract. or in ton. or otherwise, is limited to amounts paid by Customer to Xerox pursuant to the terms hereof. D. Xerox shall not be liable for indirect. incidental or consequen- tial damages, including, but not limited to, loss of use, reve- nue or profit. Remedies set forth herein are exclusive, E. Some states do not allow exclusion of implied warranties or imitations on how long an implied warranty lasts, so the above exclusion or limitation of implied warranties may not apply. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusion or limitation of incidental or consequential damages may not apply. Limited warranties set forth above give Customer specific legal rights. Customer may have other rights which vary from state to state. 6. ALTERATIONS. ATTACHMENTS AND SUPPLIES Customer agrees not to make any alterations or attachments to Equipment without prior written consent of Xerox. If Equipment is altered by Customer, ora device is attached by Customer to Equipment, or Customer utilizes a supply item, which. in the judgment of Xerox increases the cost of mainte- nance to. be performed under this Agreement, Xerox will pro- pose either an incremental charge or request that Equipment be returned to its standard configuration or that use of the supply item be discontinued. H, in Xerox' judgment. an alteration, at- tachment, or use of a supply item affects the safety of Xerox' personnel or Equipment users, Xerox shall notify Customer of such safety problem and shall have the right to withhold service for Equipment until the unsafe condition is remedied. If Cus- tomer. within five (5) days of such proposal or request, does not agree in writing to such proposal or request or remedies unsafe • condition. Customer will be in default of its obligations under this Agreement as of such date. This paragraph shall not apply to the attachment of Xerox Electronic Printing Systems equip- ment to a host computer. 7. PRICE A. Prices are based upon the applicable Xerox Price Lists in effect upon Customer's execution of the order Agreement. 11, through no fault of Customer, Xerox is unable to deliver Equipment within sixty (60) days, prices, terms and condi- tions will remain unchanged until Equipment is available for delivery. H Customer does not accept delivery within sixty (60) days of Xerox' acceptance of this Agreement. Xerox reserves the right to change prices, terms and conditions. 11 changes are unacceptable to Customer. Customer may, by written notice received by Xerox prior to Equipment delivery. terminate this Agreement. B. Customer agrees to pay Equipment transportation and/or placement charges (if applicable) at Xerox' rates in effect at the time of Customer's execution of the Xerox Order Agree- ment pertaining to this transaction. Equipment removal charges (if any) will be paid by Customer at Xerox' rates in effect at the time of such Equipment removal. In addition. Customer agrees to pay for rigging (where adequate physical access is not available) and for expenses resulting from car- rier delay or aborted delivery caused by Customer. C. Xerox shall have the right to increase the maintenance com- ponent of the minimum monthly lease payments (including meter charges. if applicable) payable by Customer without prior notice. effective one year after the Effective Date of this Agreement and at the end of every twelfth (12th) month thereafter. However, no increase of the maintenance compo- nent of the minimum monthly lease payment shall exceed ten percent (10%) of the maintenance component of the mini- mum monthly lease payment (including meter charges, if applicable) in effect immediately prior to such increase. D. For Customers receiving Xerox government pricing, notwithstanding Paragraph 7.C. above. Xerox shall have the right to change minimum monthly lease payments without prior notice. upon exoiration of the current government price term except as expressly provided for herein. Customers obligation to pay all sums required under this Agreement is absolute and unconditional and shall not be subject to abate- ment, reduction or set-off for any reason whatsoever, including. but not limited to. any claim of Customer arising out of the default of this Agreement. B. During the term of this Lease. Customer agrees to pay the number and amount of monthly installments as shown on the Term Lease section of the Xerox Order Agreement as mini- mum lease payments for Equipment. The first minimum lease payment shall be due on the Commencement Date. Com- mencement Date for Equipment to be installed by Xerox shall be the same day of the month in which the Equipment is installed, in the month succeeding installation. Equipment which is not to be installed by Xerox, Commencement Date shall be thirty (30) days atter shipment of Equipment. Com- mencement Date for In -Place Equipment shall be the same day of the month in which this Agreement is accepted by Xerox in the month succeeding acceptance. Subsequent lease payments for all Equipment shall be due on the same day of each and every consecutive month thereafter for the term hereof. If the Commencement Date falls on the last day of a month. subsequent payments shall be due on the last day of each succeeding month. Xerox will endeavor to send Customer a monthly payment reminder. Customer agrees that should Xerox encounter a delay in initiating preparation and mailing of such monthly payment reminders, Customer may receive more than one such monthly payment reminder. Minimum monthly lease payments are due regardless of re- ceipt of payment reminders. Customer also understands that Customer may receive separate monthly payment reminders for each item of Equipment the sum of which will total the monthly minimum lease payment shown on the Term Lease section of the Xerox Order Agreement. C. (i) Customer also agrees to pay associated meter charges (if any) in excess of the monthly, semi- annual or annual (as applicable) allowance as set forth in the applicable Xerox Maintenance Price List. (ii) For Equipment having associated meter charges. Cus- tomer agrees to provide the meter readings to Xerox promptly at the end of each month if the allowance is monthly, at the end of each six (6) month period if the allowance is semi-annual or at the end of each twelve (12) month period 1 the allowance is annual, on forms pro- vided by Xerox. Xerox shall have free access to Equip- ment to ensure the accuracy of the meter reading. Metered unh charges are invoiced post monthly. at the end of each six month period or annually (as applicable). upon receipt of Customer's meter read. except that if Customer's meter read is not timely received by Xerox, charges may be estimated by Xerox and invoiced accord- ingly. Meter charges are prorated during any allowance period that Equipment is installed for less than the full allowance period. based on a thirty (30) day month. 160 -day six month period or three hundred and sixty (360) day year. Such invoices for meter charges are due and payable upon receipt. D. 11 a Customer fails to pay Xerox when due any amounts re- quired to be paid hereunder. Customer shall be in default and agrees to pay to Xerox a late charge, where permitted, of one percent (1%) per month of the unpaid amount due until paid, or maximum late charge otherwise permitted by appli- cable law after expiration of any statutorily required grace period. 9. TITLE/SECURITY INTEREST/RISK OF LOSS A. Except as expressly set forth in this Agreement, Equipment is, and shall at all times be and remain the sole and exclusive property of Xerox: Customer shall have no right, title or inter- est therein or thereto. All replacements. substitutions and renins thereto shall become a component Dart of Equipment • placements. substitutions. anu miscue* 111171 ce ..o.. oei any products and proceeds of the foregoing for the purpose of securing payments due hereunder and all other promises and obligations of Customer to Xerox arising under this Agreement. Customer agrees to sign and execute et any time alone or with Xerox any financing statements or other documents which Xerox deems reasonably necessary to protect and continue Xerox security interest under this Agreement. Xerox is also granted an irrevocable power of attorney to execute such financing statements or other docu- ments on Customer's behat. Customer shalt prevent and hold Xerox harmless against assertions of interest or claims by third parties. C. When all of Customer's promises and obligations under this Agreement and the Purchase Option Price have been fully paid and satisfied. Xerox security interest shall terminate. D. Xerox may mark the Equipment to conspicuously show it has a security interest therein and Customer shall place no conflicting marks or permit the Xerox marks to be removed or defaced. Customer agrees not to remove any ownership identification tags on Equipment or suffer or permit any hen or encumbrance of any kind against Equipment or allow it to become fixtures to real estate. E. Customer agrees to bear all risk of toss or damage to Equip- ment arising from Customer negligence or theft or mysteri- ous disappearance of Equipment. Xerox shall bear risk of loss or damage to Equipment from all other causes, 10. TERM A. Notwithstanding the delivery of Equipment, this Agreement . shall become effective on the date the Xerox Order Agree- ment is accepted for Xerox by an authorized Xerox represen- tative and shall continue for the lease term as specified on the Term Lease section of the Xerox Order Agreement. B. Customer agrees this Agreement can be terminated only by expiration of its fixed term or payment of the full purchase price as set forth in paragraphs 11.A. and 11.B. hereof. C. OPTION TO RENEW (1) When all of the obligations set forth in Paragraph 8. have been paid, Customer may exercise an option to renew this Lease at expiration of the lease term for one (1) addi- tional period of twelve (12) months at the same price and on the terms and conditions in effect at the time of re- newal of this Agreement, provided Customer gives writ- ten notice to Xerox of its intention to renew at least thirty (30) days prior to expiration of this Lease Agreement. (ii) Customer may purchase leased Equipment at any time during the renewal period as set forth in Paragraph 11. D. EOUIPMENT RETURN Upon expiration hereof or early termination of this Lease hereunder. or upon demand made by Xerox pursuant to Par- agraph 12; hereof. Customer shall return to Xerox Equipment and any Operating System or Applications Software licensed by Xerox to be utilized in connection with Equipment in the same condition as when delivered to Customer, reasonable wear and tear excepted, at such place or on board such car- rier, packed for shipping, as Xerox may specify. 11. EXERCISE OF PURCHASE OPTION AT END OF LEASE A. When all of the Customer's obligations as set forth in Para- graph 8 have been paid. Customer may exercise an option to purchase Equipment leased hereunder on expiration of the lease term at the purchase option amount set forth in the Term Lease section of the Xerox Order Agreement. together with any taxes levied thereon. Customer agrees to give writ- ten notice to Xerox of its intention to exercise the option at least thirty (30) days prior to expiration of the lease term. B. TERMINATION OF LEASE BY PURCHASE Customer- at any time during the lease term, provided all past and current obligations set forth in Paragraph 8 are satisfied, upon fifteen (15) days prior written notice, may purchase leased Equipment by making all minimum monthly lease payments due for the remaining term of this Agree- _ ___ __�.:. _�...__. ....w .....:.. mum monthly lease charges less any charges unearned will. upon Customers request, be mailed io Customer. 11 Cus- tomer purchases Equipment leased hereunder, Xerox main- tenance shall be offered to Customer subject to Xerox' maintenance prices. policies and terms and conditions then in effect. 12. BREACH OR DEFAULT A. If Customer does not pay charges due hereunder or other amounts required herein to be paid. breaches any of the terms or conditions of this Agreement. ceases doing busi- ness as a going concem, has a petition filed against it under any of the provisions or chapters of the Bankruptcy Act or Amendments thereto, makes an assignment for benefit of creditors, calls a general meeting of creditors. or attempts an informal arrangement or composition with creditors. if a re- ceiver or any officer of a court is appointed to have control of any of the property. or Xerox reasonably feels insecure with respect to Customer's willingness or ability to perform its obligations hereunder, Xerox shall have the right to exercise any one or more of the following remedies in order to protect the interests and reasonably expected profits and bargains of Xerox: (i) Cancel this Agreement in whole or in part: (ii) Declare entire amount Of the unpaid minimum monthly lease payments. plus all other amounts due under this Agreement, including the option to purchase price specified in the Term Lease section of the Xerox Order Agreement and any other charges unpaid, less any charges unearned, to be immediately due and payable: (iii) To the extent permitted by law. take possession of any or all hems of Equipment and Operating System or applications Software which Xerox has granted Customer the right to use in connection with Equipment. wherever located. without demand or notice. without any court order or other process of law and without liability to Customer for any damages occasioned by such taking of possession; (iv)To the extent permitted by law, enter upon premises where Equipment and any Operating System or applica- tions Software which Xerox has granted Customer the right to use in connection with Equipment, are located and render Equipment and such Software unusable. and remove. sell, lease, or otherwise dispose of Equipment and such Software and from the proceeds retain all sums due under the terms of this Agreement and be reim- bursed for all costs and expenses relating to enforcement or preservation of its rights hereunder. including. but not limited to, reasonable attorneys' fees; (v) Pursue any other remedies existing at law or in equity; (vi) Xerox shall have all of the rights and remedies of a se- cured party upon default under the Uniform Commercial Code as enacted in the state where the Equipment is lo- cated or under applicable law. B. In the event of default by Customer. Xerox may require Cus- tomer to assemble Equipment and any Operating System or Applications Software which Xerox has granted Customer the right to use in connection with Equipment and make Equipment and such Software Available to Xerox at a place and time convenient to Xerox. C. Customer agrees to pay Xerox all costs and expenses. including reasonable attorneys' fees, incurred by Xerox in exercising any of its rights and remedies. No delay or failure of Xerox to exercise any right or remedy will operate as a waiver thereof. D. No right or remedy herein conferred upon or reserved to Xerox is exclusive of any right or remedy herein or by law or equity provided or permitted; but each shall be cumulative of every other right or remedy provided hereunder or now or hereafter existing at law or in equity or by statute or other- wise and may be enforced concurrently therewith. or from time to time, but Xerox shall not be entitled to recover a n.aator amn, mt in rtamanec than Xerox could have gained by exercising any bl its rights or remedies under to s paragraph E Anypreach by Xerox with respect10 a unit's) of Equipment • will be a breach with respect to that unit's) only. ASSIGNABILITY A. Without prior written consent of Xerox. Customer shall not p) assign, transfer, pledge. or hypothecate this Lease. Equip- ment. Software, or any part thereof, or any interest therein, of (ii) sublet or lend Equipment or permit it to be used by anyone other than Customer or Customer's employees. B. Xerox may assign this Lease or the Equipment, in whole or in part. without notice to Customer. Customer will assert any claim or defenses it may have against Xerox and not against any such assignee. 14. TAXES Customer shall pay all taxes arising from this Agreement, including state and local sales and use taxes (notwithstanding their designation as excise. gross receipts. or privilege taxes) imposed or levied on with respect to the Equipment or Software for which the right to use is granted hereunder. Customer shall reimburse Xerox for all amounts paid or payable by Xerox in discharge of the foregoing taxes. Customer shall not be respon- sible for taxes based on Xerox' gross or net income or personal property taxes. 15. PATENT INDEMNITY Xerox agrees to indemnify Customer from direct loss. damage and liability which Customer may incur on account of direct infringement of any United States Letters Patent relating to Equipment provided hereunder by Xerox, and Xerox agrees, at its own expense. to assume the defense of all claims. suits and actions brought against Customer alleging that any Equipment provided hereunder directly infringes any United States Letters Patent, provided Xerox is promptly notified in writing. given all assistance it requires and permitted to direct the defense. Xerox will pay any final judgment, based on such infringement of a court of last resort, but Xerox shall have no liability or costs or settlements incurred without its consent. If Customer's use of any such Equipment is enjoined, or if Xerox desires to mini- mize its liabilities hereunder. Xerox will, at its option, either sub- stitute other equally suitable equipment. modify Equipment so that it no longer infringes, obtain for Customer the right to con- tinue its use. or accept retum of Equipment. Xerox shall retain all payments made hereunder to Xerox during period Customer had use of Equipment. For purposes of this paragraph. the term ""Equipment" shall include any Xerox Operating System Software licensed hereunder. The foregoing states the entire liability of Xerox for patent infringement. No indemnity shall apply to any patent infringement arising from the use or sale of Equipment in combination with any device or equipment not provided hereunder by Xerox, or to any infringement caused by modification of the Equipment by a party other than Xerox. No indemnity shall apply to Equipment made or modified to Customer's own specifications or design, including copyright, trademark or patent infringement claims re- lated to images produced in accordance with Customer's specifications. The foregoing indemnity shall not apply and Cus- tomer agrees to indemnity Xerox in a manner fully equivalent to the foregoing in any suit, claim. or proceeding brought against Xerox in which and to the extent the alleged infringement arises from either the image produced, Equipment made or modified in accordance with Customer's specifications. unauthorized modifications by Customer of Equipment or Xerox Operating System Software, or combination of Xerox Equipment or Xerox Operating System Software leased and licensed, respectively, pursuant to this Agreement with equipment or software not supplied by Xerox. . SOFTWARE Xerox hereby grants to Customer. at the applicable charge (if any). the non-exclusive right to use the current standard Release of Xerox Operating System Software ("Software"). Xerox re- serves the right to require implementation of subsequent standard Releases in order to be able to pro perly maintain Equip- wrtnout yne prior written consent VI neva. vA'.cy •il lova •..•,..•..•.. with Customer's use thereof in conjunction with use 6t Equip- ment, and (til not to cause or permit any Software, or any part thereof. to be disclosed to. or used by, any person or entity other than authorized officers. employees or agents of Customer. Cus- tomer agrees 10 advise each authorized person who uses any Software to refrain from disclosing or delivering such Licensed Software. or any pan thereof. to any other person or entity. except as provided herein. Each Software which Customer is granted the right to use in conjunction with a unit of Xerox Equipment is warranted to ma- terially conform, when shipped to Customer. to hs published specifications. Customer's sole and exclusive remedy for failure of Software to materially conform to its published specifications when shipped to Customer is for Xerox. within a reasonable time after written notice of such non -conformity is received by Xerox. to restore Software to material conformity with its pub - fished specifications. If Xerox is unable to restore Software to material conformity to published specifications. Xerox will ac- cept the return of Software and Equipment in connection with which Customer was granted the right to use Software and refund to Customer the applicable Software license feels) (if any) previously paid to Xerox. together with minimum monthly Equipment lease charges previously paid Xerox less reasonable rental value of such Equipment for the period of time such Equip- ment was installed at Customer's premises. If Xerox elects to refund Software fee(s). Customer shall promptly erase or de- stroy all copies of such Software. Customer must notify Xerox in writing of material non -conformity of Software within ninety (90) days after delivery of Software. Xerox specifically disclaims any Warranty that Licensed Software will meet Customer requirements or will operate in combinations chosen by Customer or operation of Software will be uninterrupted or error -free or that any Software defects will be corrected. Published specifications for Software. if any, may be updated by Xerox from time to time, and such updates may constitute a change in specifications. 17. TRADE-INS If Customer trades in to Xerox the Equipment in connection with the Term Lease of other equipment, Customer shall receive a trade-in allowance for the Equipment in accordance with the terms and schedule of the Xerox Trade -In Terms and Conditions then In effect. Such trade-in allowance shall be applied. at Xerox' option. either to reduce the remaining payments owed hereunder or to reduce the price of the replacement equipment. This Agree- ment shall nonetheless continue provided there is a remaining balance owed after application of the trade-in allowance. In the event of a trade-in Xerox and Customer may agree to the replace- ment of any remaining balance owed hereunder by providing for a new schedule of lease payments which may be consolidated with and coterminous with the schedule of payments for a Term Lease Agreement for the replacement equipment. 18. EQUIPMENT ADD-ONS By executing an Equipment Add -On Amendment Customer may add to this Agreement subsequent Term Leases of replacement equipment, Upgrades (as defined in the Purchase Terms and Conditions) and Accessories (all hereinafter referred to as "Sub- sequent Leases") so that the total lease payments of the Equip- ment covered by this Agreement is increased by the lease payments of the Subsequent Lease. All terms and conditions of this Agreement shall apply equally to such Subsequent Lease, including. without limitation, the reservation of a purchase money security interest in the Subsequent Lease Equipment. Equipment previously leased shall be security for the Subse- quent Lease until such time as all of Customer's obligations with respect to the previous lease have been fully satisfied. With respct to the addition of Upgrades and Accessories. the number of lease payments owing on the Subsequent Lease shall be the same as the number of payments owed under this Agree- ment immediately prior to the addition of the Subsequent Lease. On each monthly payment reminder invoice the monthly lease -l_ r I ,., A •.•e•• he mnenLAa- tomer.wn be deemed to nave 'nen me Zball.v a..... ........a,,.. to the Upgrade or: Actessory. When equipment is added to this Agreement each payment made thereafter shall be allocated so that an amount equal to the original payment is applied to the lease of the original Equipment and an amount equal to the in- crease is applied to the Subsequent Lease: however. the amount of any cash down payment on the Subsequent Purchase shall be deemed to be allocated in its entirety to such Purchase. 19. DISCLAIMER OF ALL WARRANTIES ON PURCHASE XEROX MAKES NO WARRANTIES. EITHER EXPRESSED OR IM- PLIED. AS TO ANY MATTER WHATSOEVER, INCLUDING. WITHOUT LIMITATION. CONDITION OF EQUIPMENT, ITS MERCHANTABILITY OR FITNESS FOR A PARTICULAR PUR- POSE. FOR EOUIPMENT WHICH MAY BE PURCHASED BY CUS- TOMER PURSUANT TO PARAGRAPHS 11.A. AND 11,B. OF THIS AGREEMENT AND XEROX SELLS THE EQUIPMENT AS- IS -WHERE -IS. 20. GENERAL A. NOTICES Notices required pursuant to this Agreement shall be mailed to Xerox at the Customer inquiry address identified on Cus- tomer's most recent payment reminder or invoice and to Customer at the bill -to address identified in the Xerox Order Agreement. All notices made pursuant to this Agreement will be effective upon date of postmark. Xerox represents that it complies with the requirements of applicable Federal. State and Local'statutes and regulations. D. EXTRAORDINARY RELIEF Except for obligation of payment, neither Xerox nor Cus- tomer shall be liable for non-performance caused by circum- stances beyond their control, including. but not limned to, work stoppages. fires. civil disobedience. riots. rebellions, accidents, flood, and acts of God. E. FINANCIAL STATEMENTS Each year during the term of this Agreement. upon Xerox request, Customer shall fumish Xerox with copies of its lat- est fiscal year-end balance sheet and profit and loss state- ment as prepared by its Certified Public Accountants within ninety (90) days after close of such fiscal year. NOTICE TO THE BUYER (CUSTOMER): 1. Do not sign the contract before you read it or if it contains any blanks. 2. You are entitled to an exact copy of the contract you sign. 3. This Lease Agreement cannot be cancelled or terminated except as expressly provided herein. CUSTOMER'S SIGNATURE ON THE XEROX ORDER AGREEMENT AND INITIALS IN THE APPROPRIATE SECTIONS THEREOF IS AN ACKNOWLEDGEMENT OF RECEIPT OF THE DOCUMENTS SPECIFIED IN PARAGRAPH 1 HEREOF AND THAT CUSTOMER HAS READ AND UNDERSTANDS THE ENTIRE AGREEMENT AND ALL TERMS AND CONDITIONS. THE SIGNER OF THE XEROX EQUIPMENT AGREEMENT AFFIRMS THAT HE/SHE IS A DULY AUTHORIZED CORPORATE REPRESENTATIVE. PARTNER OR PROPRIETOR OF CUSTOMER. AND HAS THE AUTHORITY TO EXECUTE THE AGREEMENT ON ITS BEHALF. CUSTOMER ALSO REPRESENTS THAT THE EQUIPMENT IS LEASED PRIMARILY FOR BUSINESS OR COMMERCIAL USE.