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<br />, <br /> <br />Contract Periods or Extensions which, .8 a Commencement <br />Date oQ or after the date of the notice. Such modification will apply <br />to current Lease Contract Penods or Extensions upon their <br />Expiration Oates. provided such occur on or after the effective <br />date. For a lease machine which was on order prior to the date of <br />the notice and is shipped within three months following the date of <br />the notice, and for an Extension which will commence within three <br />months following the date of the notice, the effective date of such <br />modification will be the Expiration Date of the initial Lease <br />Contract Period or the ensuing Extension. respectively. Other- <br />wise, the Agreement or any Supplements can only be modified by <br />a written agreement duly signed by persons authorized to sign <br />agreements on behalf of the Customer and IBM, and variance <br />from the terms and conditions of this Agreement and any Supple- <br />ments in any Customer order or other written notification will be of <br />no effect. <br />IBM is not responsible for failure to fulfill its obligations under <br />this Agreement due to causes beyond its control. <br /> <br />No action, regardll of form, ansing out of this Agreement <br />may be brought by either party more than two years after the <br />cause of action hilS arisen, or, in the case of an action for nonpay- <br />ment. morc thm) lwo yr:ars from the date the last payment <br />was due. <br />This Agreement will be governed by the laws of the State of New <br />York. <br />THE CUSTOMER ACKNOWLEOGES 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 ITS APPLICABLE SUPPLEMENTS AND EXHIBITS <br />ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE <br />AGREEMENT BETWEEN THE PARTIES, SUPERSEDING ALL <br />PROPOSALS OR PRIOR AGREEMENTS. ORAL OR WRITTEN, <br />AND ALL OTHER COMMUNICATIONS BETWEEN THE <br />PARTIES RELATING TO THE SUBJECT MATTER OF THIS <br />AGREEMENT. <br /> <br />Agreement for Hourly IBM Machine Service <br />(Z120-2826-00) <br /> <br />International Business Machines Corporation (18M) by its acceptance of this Agreement agrees to furnish and the Customer agrees to <br />accept on the fOllowing terms and conditions Hourly I~M Machine Service at .an IBM ~aci.lity for program testing ~nd ?~her activities, <br />including conversion, directly related to program testing. Hourly IBM Machine Service IS compnsed of the availabilIty and use of <br />machines and programs (applicable System Control Programming and certain Licensed Program Products) as mutually agreed upon <br />by the Customer and IBM at the IBM FaCility. <br /> <br />TERM <br />This Agreement is effective from the date it is accepted by IBM <br />and shall remain in force until terminated by the Customer upon <br />one month's prior written notice, or by IBM upon three months' <br />prior written notice. The availability of machines and programs <br />may be modified or terminated by IBM upon one month's notice. <br /> <br />USE <br />The service furnished under this Agreement shall be used <br />eXClusively by the Customer for program testing and other <br />activities, including conversion, directly related to program <br />testing. This includes testing activities associated with either IBM <br />furnished or Customer furnished programs. The Customer <br />represents to IBM that he is currently or prospectively a user of <br />J8M products, and will not use the service being furnished under <br />this Agreement except in conjunction with the Customer's use or <br />prospective use of such IBM products. <br />CHARGES <br />The Customer agrees to pay charges for Hourly IBM Machine <br />Service in accordance with IBM's established rates in effect when <br />the service is rendered. All charges are SUbject to change upon <br />three months' notice <br />Charges accrue when the service is available for the <br />Customer's use, as agreed upon by the Customer and IBM at the <br />IBM Facility. Charges will be invoiced monthly for services <br />rendered and are payable on receipt of invoice, <br />There shall be added to any charges under this Agreement <br />amounts equal to any applicable taxes however designated. <br />levied or based on such charges or on this Agreement or the <br />services rendered hereunder. or on the machines and programs <br />or their use, including state and local privilege or excise taxes <br />based on gross revenue, and any taxes or amounts in lieu thereof <br />paid or payable by IBM in respect of the foregoing, exclusive of <br />personal property taxes assessed on the machines or programs <br />and taxes based on net income. <br /> <br />STORAGE MEDIA AND SUPPLIES <br />Except for storage media necessary for the availability and use <br />of IBM furnished programs and incidental consumption of paper <br />forms and cards utilized, all suppl!es, materials and other storage <br />media required by the Customer to use the machines must be <br />furnished by the Customer and must meet IBM speCifications. <br /> <br />MAINTENANCE <br />IBM shall have full and free access to the machines and <br />programs for maintenance purposes. Charges for any <br /> <br />';'\IIir.~' <br /> <br />adjustments, component replacements or repairs due to the <br />negligence of the Customer will be borne by the Customer. <br />When machines or programs are unavailable during the <br />Customer's scheduled hours due to required maintenance, such <br />time will be rescheduled as mutually agreed upon by the <br />Customer and. IBM. <br /> <br />GENERAL <br />The Customer IS solely responsible for the accuracy and <br />adequacy 01 all proqramming used in connection With the <br />machines, the operation of the machInes when the machmes are <br />scheduled for the Customer's exclusive use, and the resultant out- <br />put thereof. IBM <iSSllmes no responsibility for loss or security of <br />Customer dat(l m records. Programs furnished by IBM are <br />provided for the (;ustomer's use at the IBM Facility. The <br />Customer agrees not to copy any such programs for use outside <br />of the IBM Facility or remove any such programs from 18M's <br />premIses. <br /> <br />IBM MAKES NO WARRANTIES EXPRESS OR IMPLIED. <br />INCLUDING BUT NOT LIMITED TO, THE IMPLIED WAR- <br />RANTIES OF MERCHANTABILITY AND FITNESS FOR A <br />PARTICULAR PURPOSE. IBM will not be liable for lost profits. <br />for any claim against the Customer by any other party, or for <br />consequential damages even if IBM has been advised of the <br />possibility of such damages. IBM shall not be liable for failure to <br />make Hourly IBM Machine Service available due to causes <br />beyond IBM'~; control. No action, regardless of form, ansing out <br />of the tr;:Hlsilctions under tillS Agreement. may be brought by <br />either 0<i1"ty morc than OnE! year after the cause of action has <br /><1cclucc1, except that an action for nonpayment may be brought <br />within one year after the date of last payment <br />The terms of this Agreement may be modified by IBM upon <br />three months' written notice to Ule Customer. The Customer rnay <br />exercise the Customer's right to terminate; otherwise, such <br />modification shall become effective. <br />This Agreement shall be governed by the laws of the State of <br />New York and constitutes the entire agreement between the <br />Customer and IBM with respect to Hourly IBM Machine Service. <br />The foregoing terms and conditions shall prevail notwithstanding <br />the terms of any order submitted by the Customer with respect to <br />Hourly IBM Machine Service. <br /> <br />THE CUSTOMER ACKNOWLEDGES THAT HE HAS READ <br />THIS AGrlEEMENT, UNDERSTANDS IT AND AGREES TO ALL <br />TERMS AND CONDITIONS STATED HEREIN. <br /> <br />Page 17 of 17 <br />