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<br />eluding negligence, shall be limited to thf' ~~ater of $100,000 or
<br />te a Purchase Price stated in the applic. Supplement for the
<br />s~ecific Machines that caused the dama9~" or that are the sub-
<br />ject malter of. or are directly related to. the cause of action. The
<br />foregoing limitation of liability will not apply to the payment of
<br />costs, damages and attorney s fees referred to in the Section en-
<br />titled "Patents and Copyrights:' or to claims for personal injury or
<br />damage to real property or tangible personal property caused by
<br />IBM'S negligence.
<br />In no event will IBM be liable for any damages caused by the
<br />Customer's failure to periorm the Customer's responsibilities, or
<br />for any lost profits, lost savings or other consequential damages,
<br />even if IBM has been advised of the possibility of such damages,
<br />or for any claim by the Customer based on any third party claim
<br />except as provided In the Section entitled "Patents and
<br />Copyrights," or for any damages caused by periormance or non-
<br />periormance of Machines or programming located outside the
<br />United States or Puerto Rico, nor will IBM be liable for loss of
<br />funds contained in, dispensed by, or associated with any
<br />Mact:)ine under this Agreement.
<br />
<br />PURCHASE OF NON-IBM EQUIPMENT
<br />
<br />As previously stated, the term "Machines" in this Agreement
<br />also applies to non-IBM equipment. However, the Sections of this
<br />Agreement entitled "Installation," ''Warranties,'' "Other Products
<br />and Services" and "Patents and Copyrights" are replaced in
<br />their entirety by the following in respect to non-IBM equipment.
<br />
<br />Installation
<br />
<br />The Customer shall provide a suitable installation environment
<br />with facilities as prescribed by the manufacturer. Arrangements
<br />for installation will be the responsibility of the Customer. IBM has
<br />no responsibility for installation under this Agreement nor for any
<br />installation periormed by the manufacturer.
<br />
<br />Warranties
<br />
<br />NON-IBM EQUIPMENT IS NOT WARRANTED BY IBM AND
<br />IS SOLD BY IBM TO THE CUSTOMER DN AN "AS IS"
<br />BASIS. THERE ARE NO IBM WARRANTIES EXPRESS OR
<br />IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
<br />WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
<br />PARTICULAR PURPOSE. HOWEVER, THE MANUFAC-
<br />TURER'S WARRANTY, IF ANY, APPLIES, AND THE CUS-
<br />TOMER MUST DEAL WITH THE MANUFACTURER ON SUCH
<br />MATTERS.
<br />
<br />Other Products and Services
<br />
<br />The Customer is responsible for arranging for maintenance
<br />service for non-IBM equipment.
<br />
<br />Patents and Copyrights
<br />
<br />IBM shall have no liability to the Customer regarding patent or
<br />copyright infringement for non-IBM equipment.
<br />
<br />GENERAL
<br />
<br />This Agreement ana anyon-order Machines are not assigna-
<br />ble to other than an IBM affiliate without the prior written consent
<br />of IBM. Any attempt to assign any of the rights. duties or obliga-
<br />tions of this Agreement without such consent is void.
<br />The Customer agrees to comply with the provisions of any End
<br />User Certification contained in any Supplement to this Agree-
<br />ment, or in any volume procurement or single shipment quantity
<br />discount amendment to this Agreement.
<br />iBM may, upon written notice, modify the terms and conditions
<br />of this Agreement. Any such modification will appiy on the effec-
<br />tive date specified in the notice to all orders for purchase which
<br />are accepted by IBM on or after the date of notice. In addition, IBM
<br />may modify this Agreement by setting forth such modification in
<br />a Supplement which is subsequently accepted by the Customer
<br />as provided herein. Otherwise, this Agreement can only be mod-
<br />ified by a written agreement duly signed by persons authorized
<br />to sign agreements on behalf of the Customer and of IBM, and
<br />variance from or addition to the terms and conditions of this
<br />Agreement in any order or other written notification from the Cus~
<br />tomer will be of no effect.
<br />If any provision or provisions of this Agreement shall be heid
<br />to be invalid, illegal or unenforceable, the validity, legalify and
<br />enforceability of the remaining provisions shalf not in any way be
<br />affected or impaired thereby.
<br />IBM is not responSible for failure to fulfill its obligations under
<br />this Agreement due to causes beyond its control or to provide
<br />any services hereunder for Machines or programming located
<br />outside the United States or Puerto Rico.
<br />No action, regardless of form, arising out of this Agreement
<br />may be brought by either party more than two years alter the
<br />cause of action has arisen, or, in the case of an action for non-
<br />payment, more than two years from the date the last payment
<br />was due.
<br />I! the Customer fails to pay the Purchase Price due hereunder
<br />and IBM repossesses a Machine as provided by law, the Custom-
<br />er agrees to pay all costs and expenses of repossession, includ-
<br />ing reasonable .attorney's fees.
<br />This Agreement is governed by the laws of the State of New
<br />York.
<br />THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER
<br />HAS READ THIS AGREEMENT. UNDERSTANDS IT, AND
<br />AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
<br />FURTHER. THE CUSTOMER AGREES THAT THIS AGREE-
<br />MENT AND ANY OTHER APPLICABLE IBM AGREEMENTS,
<br />AMENDMENTS, SUPPLEMENTS AND CERTIFICATIONS,
<br />INCLUDING THOSE ACCEPTED IN THE FUTURE, REFER-
<br />ENCING THIS AGREEMENT OR EXPRESSLY MADE A PART
<br />HEREOF. WILL BE THE COMPLETE AND EXCLUSIVE STATE-
<br />MENT OF THE AGREEMENT BETWEEN THE PARTIES,
<br />SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS.
<br />ORAL OR WRITTEN. AND ALL OTHER COMMUNICATIONS
<br />BETWEEN THE PARTIES RELATING TO THE SUBJECT
<br />MATTER HEREIN,
<br />
<br />IBM Maintenance Agreement
<br />(Z125-3275-00)
<br />International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions will apply to any
<br />Customer order accepted by IBM to provide maintenance service for IBM Machines located within the United States and Puerto Rico.
<br />"Machine(s)" as used herein refers to machines and/or their features, model conversions and machine elements unless the context
<br />requires individual reference. This Agreement is effective from the date on which it is accepted by IBM and shall remain in force until
<br />terminated by the Customer or IBM. Specific Machines become subject to thiS Agreement on the Effective Date designated by the
<br />Customer, if agreed to by IBM, and such information will be shown in a Supplement to IBM Maintenance Agreement (Supplement}
<br />signed by IBM.
<br />MAINTENANCE SERVICE
<br />IBM agrees to provide the availability of maintenance service to
<br />keep the Machines in, or restore the Machines to, good working
<br />order. Maintenance service includes preventive maintenance
<br />based on the specific needs of individual Machines as determined
<br />by IBM and on~call remedial maintenance. Maintenance service
<br />also includes lubrication, adjustments and replacement of main-
<br />tenance parts all as deemed necessary by IBM Maintenance
<br />parts, which may be used parts, will be furnished on an exchange
<br />basis, and the replaced parts become the property of 18M. IBM
<br />may, at its option, store maintenance equipment and/or parts on
<br />the Customer's premises.
<br />The Customer agrees to provide a suitable environment for the
<br />Machines as speCified by IBM, and to proVide IBM full, free and
<br />safe access to the Machines to provide rlaintenance service. The
<br />
<br />Customer is responsible to implement appropriate safeguards for
<br />Customer's data. The Customer is responsible for removing,
<br />contrOlling and replacing or reloading funds contained in the
<br />Machines. IBM will service Machines containing funds only when
<br />the cash container CClnnot be opened prior to repair by IBM, in
<br />which case the Customer will remove the funds as soon as the
<br />container has been opened.
<br />
<br />PERIODS OF MAINTENANCE SERVICE
<br />The Base Period of Maintenance Service is from 7 a.m. to 6 p.m.,
<br />Monday through Friday, unless otherwise designated by IBM in
<br />the Supplement. The Customer nl.1Y select Optional Periods of
<br />Maintenance Service shown in the Supplement. The Optional
<br />Period for Monday through Friday must include the Base Period
<br />
<br />PClqe 5 of 17
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