Res 1985-087 - Laserfiche WebLink

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IUNDING In the event, through no action initiated by Customer, its legislative body does not appropriate funds for the continuation of this Agreement for any fiscal year after the 1 st fiscal year, Customer may, at the beginning of the fiscal year for which its legislative body does not appropriate funds and upon thirty (30) days prior written notice to Xerox return to Xerox, at Customer's expense, the Equipment described in this Agreement and thereupon be released of its obligations to make all further lease payments to Xerox due thereafter, if Ii) the Equipment is returned to Xerox in good condition at a location designated by Xerox, (ii) the foregoing notice states the failure of the legislative body to appropriate the necessary funds as the reason for cancellation, and the notice is accompanied by payment of all amounts then due to Xerox under this Agreement. In the event the Customer returns the Equipment pursuant to the terms of this paragraph, Xerox shall retain all sums paid hereunder by Customer. 25. CONVERSION TO RENTAL Should this Agreement be held by the Courts of the State in which Customer is located to be invalid or unenforceable, in whole or in part, the parties agree that the machines leased hereunder shall be deemed to have been installed on rental pursuant to the terms and conditions of the applicable Xerox State and Local Government Equipment Price List in effect at the time of the holding of the Court, and at Xerox' applicable State and local Govern- ment rental prices calculated at a monthly rate equal to the lowest annual monthly rate including copy usage charges, (sometimes called the Contract Period) set forth in such Price List for such machines. For the period prior to such holding, Xerox shall credit to the applicable rental plan monthly charges the amounts paid by Customer to Xerox pursuant to this Term Lease Agreement. Any excess credits shall be refunded to the Customer, and any deficiency shall be due to Xerox, but in no event shall any amount be due to Xerox in excess of funds appropriated. 26. INCOME TAX INDEMNITY This Lease has been entered into on the basis that Xerox or any Assignee of Xerox shall claim that the interest paid hereunder is exempt from Federal income tax under Section 103(a)(1) of the Internal Revenue Code of 1954 as amended. Should the United States Government disallow, eliminate, reduce, recapture, or disqualify, in whole or in part, any benefits of such exemption as a result of any acts or omissions by Customer or as a result of the inapplicability of such section at the time this Lease is entered into because of the status of Customer, Customer shall then indemnify Xerox by pay- ment, at Xerox' election of either; A. Supplemental Payment to Xerox during the remaining period of the Lease Term in an amount necessary to permit Xerox to receive (on an after tax basis over the full term of the Lease) the same rate of return that Xerox would have realized had there not been a loss or disallowance of such benefits, together with the amount of any interest or penalty which may be assessed by the governmental authority with respect to such loss or disallowance; or B. A lump sum payable upon demand to Xerox which shall be equal to the amount necessary to permit Xerox to receive (on an after tax basis over the full term of the Lease) the same rate of return that Xerox would have realized had there not been a loss or disallowance of such benefits together with the amount of any interest or penalty which may be assessed by the governmental authority with respect to such loss or disallowance. Zl. 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 reserves the right to require implementation of subsequent standard Releases in order to be able to properly maintain Equipment. Customer acknowledges that such Software is composed of confidential data and knowhow which are either proprietary to Xerox or to a Xerox licensor. Customer agrees to treat all Software as proprietary and as such agrees: (i) not to reproduce, copy or duplicate more than two (2) copies of such Software without the prior written consent of Xerox, except in connection with Customer's use thereof in conjunction with use of Equipment, and (ii) 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. Customer agrees to advise each authorized person whp uses any Software to refrain from disclosing or delivering such Licensed Software, or any part 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 materially conform, when shipped to Customer, to its published specifications. Customer's sole and esclusive 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 published specifications. If Xerox is unable to restore Spftware to material conformity to published specifications, Xerox will accept 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 Equipment was installed at Customer's premises. If Xerox elects to refund Software fee(s), Customer shall promptly erase or destroy 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. Xarox 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 Soft- ware, if any, may be updated by Xerox from time to time, and such updates may constitute a change in specifications. 28. GENERAL A. Customer shall furnish as may be requested by Xerox either copies of its Annual Report for the preceding fiscal year or the office from which same may be obtained. B. Any provision of this Agreement prohibited by the law of any state shall be ineffective as to said State to the extent of such prohibition without in- be validating the remaining provisions of this Agreement. Texas. -. Except as otherwise provided hereinabove this Agreement will be governed and construed according to the domestic laws of the State of~*}f:~. D. Notice shall be effective if delivered or mailed by registered or certified mail, postage prepaid to Xerox as set forth on the face of this Agreement or at such address as Xerox may notify the Customer from time to time. E. This Agreement and the Xerox Price Lists as revised from time to time shall constitute the entire Agreement between the parties relating to the sub- ject matter hereof regardless of inconsistent or additional terms and conditions in Customer Purchase orders or other documents submitted to Xerox. This Agreement supersedes all other communications, representations or agreements, either oral or written, with respect to the subject matter hereof. There are no covenants, conditions or agreements between the parties except as set forth in this Agreement. This Agreement may .£ be amended only by a written instrument executed by both parties. 29.CONFLICTS Should any discrepancies or conflicts arise between the lrovisions of this Agreement aJ those of the OWNER-CONTRACTOR AGREEMENT, the latter shal apply. ~.: EXCEPT FOR INDEMNIFIED MATTERS, XEROX' LIABILITY FOR DIRECT DAMAGES ARISING FROM XEROX' PERFORMANCE HEREUNDER IS LIMITED TO THE AMOUNTS PAID BY THE CUSTOMER UNDER THIS AGREEMENT. SUBJECT TO A MAXIMUM OF $1 MILLION PER OCCURRENCE OR IN THE AGGREGATE OF OCCuRRENCES XEROX SHALL INDEMNIFY AND HOLD THE CITY HARMLESS FROM AND AGAINST ANY OR ALL LIABILITY, JUDGMENTS, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES) ARISING FROM INJURY TO PERSONS, INCLUDING DEATH, OR DAMAGE TO TANGIBLE PERSONAL PROPERTY PROXIMATELY CAUSED BY THE NEGLIGENCE OR MISCONDUCT OF XEROX, ITS AGENTS, OR EMPLOYEES, IN THE PERFORMANCE OF ITS OBLIGA- TIONS HEREUNDER.