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<br />Additional Provisions for
<br />Machine Elements and Accessories
<br />
<br />Machine elements and accessories hav "hree-month War-
<br />ranty Period unless otherwise specified by ,I. During the War-
<br />ranty Period, the Customer will remove any defective or failing
<br />machine element or accessory and ship it prepaid to the desig-
<br />nated IBM location. IBM, at its option, will repair or replace such
<br />machine element or accessory and ship it to the Customer with-
<br />out charge.
<br />
<br />Additional Provisions for Machines Containing Funds
<br />
<br />The Customer is responsible for removing, controlling and re-
<br />piacing or reioading funds contained in the Machines. IBM will
<br />service Machines containing funds only when the cash container
<br />cannot be opened prior to repair by IBM, in which case the Cus-
<br />tomer will remove the funds as soon as the container has been
<br />opened.
<br />
<br />Services for Additional Charge
<br />During the Warranty Period
<br />
<br />Th~ services described in this Section are not warranty ser-
<br />vices. However, unless such services are provided under
<br />another written agreement between the Customer and IBM, dur-
<br />ing the Warranty Period the following services, if available, wi Ii
<br />be provided by IBM under this Agreement at IBM'S then applicable
<br />hourly service rates and minimum charges. including travel and
<br />waiting time, parts and material prices and travel expense:
<br />1) Repair of Machine damage, replacement of maintenance
<br />parts or increase in service time caused by -
<br />a) failure to continually provide a suitable environment pre-
<br />scribed by IBM including adequate space, electrical power,
<br />air conditioning and humidity control;
<br />b) neglect; misuse, including use of the Machines for pur-
<br />poses other than for which designed;
<br />c) accident; disaster, including water, wind and lightning;
<br />transportation; vandalism or burglary;
<br />d) alterations, including any deviation from IBM'S Machine de-
<br />sign;
<br />e) attachments, including any interconnection to the Machine
<br />of non-IBM equipment and devices not under an IBM maints.
<br />nance agreement;
<br />f) Machines, except those owned by IBM, under warranty
<br />from IBM, or under an IBM maintenance agreement; and
<br />g) model conversions or installation or removal of IBM features
<br />pertormed by other than IBM except that this subsection (g)
<br />will apply only during the three months subsequent to such
<br />Machine modification;
<br />2) Repair of Machine damage, replacement of maintenance
<br />parts (due to other than normal wear) or repetitive service
<br />calls caused by the use of supplies;
<br />3) Inspection of altered Machines and inspection of machines
<br />converted from one IBM model or machine type to another or
<br />on which an IBM feature is installed or removed when such ac~
<br />tivity was pertormed by other than IBM;
<br />4} Replacement or addition of parts and increase in service time,
<br />associated with the installation by IBM of an engineering
<br />change, required due to model conversions or installation or
<br />removal of IBM features pertormed by other than IBM;
<br />5) Rearrangement or relocation of Machines and provision of
<br />necessary materials;
<br />6) Replacement of a part not furnished for the Machine by IBM
<br />with a directly interchangeable IBM maintenance part, and any
<br />increase in service time associated with such activity, except
<br />that IBM will not replace any part which is included in an altera-
<br />tion; and
<br />7) Repair of a Machine caused by non-IBM representatives per-
<br />forming maintenance or repair of such Machine.
<br />
<br />Exclusions
<br />
<br />The warranties under this Agreement are in lieu of any conflict-
<br />ing statement of warranty contained in a Machine shipment. The
<br />warranties under this Agreement do not include 1) furnishing
<br />supplies, painting or refinishing the Machines or furnishing mate-
<br />rial therefor, 2) electrical work external to the Machines, 3) instal-
<br />lation, maintenance or removal of alterations or attachments to
<br />the Machines. and 4) any service which is impractical for IBM to
<br />render because of alterations in, or attachments to, the
<br />Machines.
<br />IBM does not warrant that the operation of Machines or prog-
<br />ramming will be uninterrupted or error free or that all program-
<br />ming errors will be corrected.
<br />TtlE FOREGOING WARRANTIES
<br />'Q,\\ER W ARI'IANIIES EXPRESS ('
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<br />^ "E IN LIEU OF ALL
<br />'LIED, INCLUDING.
<br />WARRANTIES OF
<br />
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<br />MERCHANTABILITY AND FITNESS FOR A PARTICULAR
<br />PURPOSE.
<br />OTHER PRODUC- \ND SERVICES
<br />Following the Warr~."y Period, IBM will provide, upon request
<br />and at IBM'S charges and terms then generally in eHect, mainte-
<br />nance service and maintenance parts for the Machines and
<br />programming services for programming as long as such services
<br />and parts are generally available. Unless such activities are pro-
<br />vided under another written agreement between the Customer
<br />and IBM, they shall be subject to the applicable terms and condi-
<br />tions of this Agreement.
<br />In addition, IBM oHers other products and services at separate
<br />charges under applicable written agreements. The Customer
<br />may contract with IBM for such other products and services, as
<br />available, but only under a written agreement between the par-
<br />ties.
<br />
<br />TRAVEL EXPENSE
<br />Except as provided in the Section entitled "Warranties," there
<br />will be no charge for travel expense associated with warranty
<br />service or programming service except that actual travel ex-
<br />pense will be charged when the site at which the Machine is
<br />located is normally inaccessible by both private automobile and
<br />scheduled public transportation.
<br />ENGINEERING CHANGES
<br />IBM wiU furnish, upon request, and at IBM'S prices then gener-
<br />ally in effect, such engineering changes as IBM shall have avail-
<br />able for sale and which may be suitable for use on or with the
<br />Machines. Any replaced parts become the property of IBM. IBM
<br />makes no representation that engineering changes announced
<br />in the future will be suitable for use on or with the Machines.
<br />
<br />PATENTS AND COPYRIGHTS
<br />
<br />IBM wiil. at its expense, defend the Customer agains1 any
<br />claim that any Machinos or programming supplied hereunder in-
<br />fringe a palent or copyright in the United States or Puerto Rico,
<br />and will pay all costs, damages and attorney's fees that a court
<br />finally awards as, a result of such claim. To quality for such de~
<br />fense and payment, the Customer must:
<br />1) give tBM prompt written notice of any such claim; and
<br />2) allow IBM to control, and fully cooperate with IBM in, the de-
<br />fense and all related settlement negotlations.
<br />IBM's obligation under tll:S Section is conditioned on the Cus-
<br />tomer's agreement thaI if the operation of the Machines or prog-
<br />ramming become, or in IBM'S opinion are likely to become, the
<br />subject of such a claHn, the Customer will permit IBM, at its option
<br />and expense, either to procure the right for tho Customer to con-
<br />tinue using the Machines or programming or to replace or modify
<br />them so that they become noninfringing; and, if neither of the
<br />foregoing alternatives is available on terms which are reasonable
<br />in IBM'S judgment, the Customer will return the Machines or prog-
<br />ramming on written request by IBM. IBM agrees to grant the Cus-
<br />tomer a credit for returned Machines as depreciated. The depre-
<br />ciation shall be an equal amount per year over the lifa of tho
<br />Machines as established by IBM.
<br />IBM shall have no obligation with respect to any such claim
<br />based upon the Customer's modification of the Machines or
<br />programming or their combination, operation or use with ap-
<br />paratus, data or programs not furnished by IBM.
<br />This Section states IBM'S entire obligation to the Customer re-
<br />garding infringement or the like.
<br />
<br />LIMITATION OF REMEDIES
<br />
<br />IBM's entire liability and the Customer's exclusive remedy
<br />shall be as follows:
<br />In all situations involving performance or nonperformance of
<br />Machines or programming furnished under this Agreement, the
<br />Customer's remedy is 1) the adjustment or repair of the Machine
<br />or replacement of its parts by IBM, or, at IBM'S option, replacement
<br />of the Machine, or correction of programming errors, or 2) if, after
<br />repeated efforts, IBM is unable to install the Machine or a replace~
<br />ment Machine in good working order, or to restore it to good
<br />working order, or to make programming operate, all as war-
<br />ranted, the Customer shail be entitled to recover actual damages
<br />to the limits set forth in this Section. For any other claim concern-
<br />ing performance or nonperformance by IBM pursuant to, or in any
<br />other way related to the subject matter of, this Agreement or any
<br />order under this Agreement, the Customer shall be entitled to re-
<br />cover actual damages to the limits set forth in this Section.
<br />IBM's liability for damages to the Customer tor any cause
<br />whatsoever, except as otherwise stated in this Section, and re~
<br />gard\ess of the form of action, whether in contract or in tort in-
<br />
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