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<br />RISK OF LOSS OR OAMAGE
<br />During the period a machine, model cc sian or feature is in
<br />transit 0r in the possession of ttle Customc" 10M and its insurers,
<br />if any, r..ieve the Customer of responsibility for all risks of loss of
<br />or damage to the (l1{-lchine, model convt)rsion or feature excapt
<br />lor loss or damage 1) caused by nuclear radiation or radioactive
<br />contamination for which the Customer is legally liable, and 2) as
<br />set forth in the Section entitled "Services for Addition.11 Charge."
<br />IBM is relieved of responsibility for aJlloss of funds contained in.
<br />dispensed by or associated wilh any machine.
<br />
<br />INVOICING
<br />Monthly Lease Charges. Monthly Rental Charges and
<br />Additional Monthly Maintenance Charges will be invoiced in
<br />advance as of the first of each month or at greater intervals in
<br />accordance with IBM's then current billing practices. Additional
<br />Use Charges and Monthly Use Charges will be invoiced in the
<br />month following the month in which they are incurred or at
<br />greater intervals in accordance with IBM's then current billing
<br />practices. Charges for maintenance service and other services
<br />furnisFled at IBM's hourly service rates will be invoiced when or
<br />after the service is performed. When a machine, model conver-
<br />sion or feature is installed, or an Optional Period of Maintenance
<br />Service is in effect, for a part of a calendar month, the Monthly
<br />Lease Charge, Monthly Rental Charge or any applicable Addi-
<br />\tonal Monthly Maintenance Charge will be prorated on the basis
<br />of a 3D-day month. Additional Use Charges will be prorated in
<br />accordance with IBM's established practices. Payment will be
<br />made within 30 days after the date of invoice. All other charges
<br />due hereunder are payable as specified in the invoice.
<br />WARRANTIES
<br />ISM warrants that each machine, model upgrade or feature
<br />addition will be in good working order on the day that it is
<br />installed and that it will conform to IBM's official published
<br />specifications. Thereafter, IBM will make all adjustments, repairs
<br />and parts replacements necessary to maintain the machine,
<br />subject to the provisions stated in the Sections entitled
<br />"Maintenance Service," "Services for Additional Charge" and
<br />"Risk of Loss or Damage."
<br />ISM further warrants that programming designated by IBM (01
<br />use with a machine and for whicll programming services are
<br />available will conform to IBM's official published specifications
<br />when shipped to tile Cll~;t()1l1Cf if proPL'lly ll:;c:d 011 SIIC!lll1,lClliIlC:
<br />TtlCrealter, IBM will provide programming service, subject to the
<br />provisions stated in the Section entitled "Programming."
<br />IBM does not warrant that the functions contained in the
<br />programming will operate in the combinations which may be
<br />selected for use by the Customer, or will meet the Customer's
<br />requirements.
<br />ALL PROGRAMMING FOR WHICH NO PROGRAMMING
<br />SERVICES ARE AVAILABLE IS OISTRIBUTED ON AN "AS IS"
<br />BASIS WITHOUT WARRANTY.
<br />IBM does not warrant that the operation of the machine or
<br />programming will be uninterrupted or error free, or that all
<br />programming errors will be corrected.
<br />THE FOREGOING WARRANTIES ARE IN LIEU OF ALL
<br />OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
<br />BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF
<br />MERCHANTABILITY AND FITNESS FOR A PARTICULAR
<br />PURPOSE,
<br />PATENT AND COPYRIGHT INDEMNITY
<br />IBM will defend the Customer against a claim that machines or
<br />programming supplied hereunder infringes a U.S. patent or
<br />copyright, or that the machine's operation pursuant to a current
<br />release and modification level of any programming supplied by
<br />IBM infringes a U.S. patent. IBM will pay resulting costs, damages
<br />and attorney's fees finally awarded provided that:
<br />a) the Customer promptly notifies IBM in writing of the claim;
<br />and
<br />b) IBM has sole control of the defense and all related settle-
<br />ment negotiations.
<br />If such claim has occurred, or in 18M's opinion is likely to occur,
<br />the Customer agrees to permit IBM, at its option and expense,
<br />either to procure for the Customer the right to continue using the
<br />machines or programming or to replace or modify the same so
<br />that they become non-infringing. If neither of the foregoing
<br />alternatives is reasonably available, the Customer agrees to
<br />return the machines or programming on written request by IBM
<br />No Termination Charges will be payable on SLJch returned
<br />machines, and the Customer will pay only those charges which
<br />were payable prior to the date of such return.
<br />IBM has no liability for any claim based upon the combination,
<br />operation or use of any machines or programminG :Jplied
<br />
<br />hereunder with equip' t or data not supplied by 18M, or with
<br />any program other th, in ac1dition to programming supplied
<br />by IBM if such claim W()llld have been ilvoided by use of another
<br />program whether or not cap8111e ot achieving the same resullc"
<br />or based lIpun i1lteriltion ut the machines or modification of any
<br />programmin9 supplied t1ernunder,
<br />The foregoing states the entire obligation of IBM with respect
<br />to infringement of patents and copyrights.
<br />LIMITATIONS OF REMEDIES
<br />10M's entlf'e liability and Ihe Customer's exclusive remedy stlClrr
<br />be as follows
<br />In all situations involving performance or non-performance of
<br />machines, model upgrades, features or programming furnished
<br />under this Agreement, the Customer's remedy is 1) the
<br />adjustment or repair of the mactline, model upgrade or feature, or
<br />replacement of its parts by IBM, or, at ISM's option, replacement
<br />of the machine, model upgrade or feature, or correction of
<br />programming errors, or 2) if, after repeated efforts, IBM is unable
<br />to illstall the machine, model upgrade or feature or a
<br />replacement machine, model upgrade or feature in good working
<br />order, or to restore it to good working order, or to make
<br />programming operate, all as warranted, the Customer shall be
<br />entitled to recover actual damages to the limits set forth in this
<br />Section. Far any other claim concerning performance or non-
<br />performance by IBM pursuant to, or in any way related to the
<br />subject matter of, this Agreement and any Supplement or other
<br />order under this Agreement, the Customer shall be entitled to
<br />recover actual damages to the limits set forth in this Section.
<br />18M's liability for damages to the Customer for any cause
<br />wtlatsoever, and regardless of the form of action. whether in
<br />contract or in tort including negligence, shall be limited to the
<br />greater of $100.000 or twelve Monthly Lease Charges or Monthly
<br />Rental Charges for the specific machines that caused the
<br />damages or that are the subject matter of or are directly related to
<br />the cause of action. Such Charges shall be those in effect for the
<br />specific machines when the cause of action arose. The foregoing
<br />limitation of liability Will not apply to the payment of cost and
<br />damage awards referred to in the Section entitled "Patent and
<br />Copyright Indemnity," or to claim:.; for person<11 injury or damage
<br />to real property or ti-in[lIble personal property cClused by IBM's
<br />negligence.
<br />In nn pvenl will IHM l)f~ liilhlr~ for <1ny Ollfl1aqes ctllJsed hy thp
<br />ClIStOl1ll~r'S failure to perform Ul(~ ClIsloJ11(:r'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 against tile Customer by any other party, exc ~pt
<br />as provided in the Section entitled "Patent and Copyri~ht
<br />Indemnity."
<br />The Customer may discontinue a machine forthwith without
<br />Termination Charges for failure of IBM to comply with any of the
<br />terms and conditions of this Agreement applicable to such
<br />machine.
<br />GENERAL
<br />This Agreement is not assignable; none of the machines may bL
<br />sublet, assigned or transferred by the Customer without the prior
<br />written consent of 18M. Any attempt to sublet, assign or transfer
<br />any of the rights, duties or obligations of this Agreement without
<br />such consent is void.
<br />Machines under ttlis Agreement are to be located only in the
<br />United States and Puerto Rico. The Customer agrees to keep IBM
<br />informed of the location of each machine. Each machine remains
<br />18M's property and may be removed by IBM at any time after
<br />discontinuance of the machine. IBM shall have full, free and safe
<br />access to each machine for this purpose.
<br />IBM may, upon three months' prior written notice to the
<br />Customer, discontinue a machine or feature or downgrade a
<br />model under a Rental Contract Period at any time or under a Lease
<br />Contract Period or Extension on its Expiration Date. IBM may
<br />discontinue a machine forthwith for failure of the Customer to
<br />comply with any of the terms and conditions of this Agreement
<br />applicable to such machine.
<br />The Agreement mily be terminated by either party, upon one
<br />month's prior written notice, following the discontinuance of all
<br />rnacnines and fulfillment of all obligations hereunder.
<br />SUbject to the terms of the following paragraph, IBM may, upon
<br />twelve months' prior written notice, modify the terms and
<br />conditions of this Agreement. except that IBM may, upon three
<br />months' prior written notice. modify the terms and conditions of
<br />the Sections entitled "Contract Period," "Charges," "Termination
<br />Charges," "Purchi1se Option," "Lease Contract Period E.tenslOn"
<br />and "Machine Modifications,"
<br />Any such modification will apply all the effective date specified
<br />in the notice to all Rental Contract Periods and to new Lease
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