|
<br /> .. obligation under this Section is conditioned on the In no event will IBM be Uable for any damages caused by the
<br /> stc er's agreement that if the Machines, or the operation Customer's failure to perform the Customer's responsibilities, or
<br /> ereof, or programming, becomes, or in IBM's opinion is likely to for any lost profits or savings or other consequential damages
<br /> become, the subject of such a claim, the Customer will permit regardless of the form of action, whether in contract or In tort
<br /> IBM, at its option and expense, either to procure the right for the including negligence. even if IBM has been advised of the
<br /> Customer to continue using the Machines or programming or to possibility of such damages. or for any claim against the Custo-
<br /> replace or modify the same so that they become non-infringing: mer by any other party, except as provided in the Section entitled
<br /> and if neither of the foregoing alternatives is available on terms "Patents and CoPYrIghts," or for any damages caused by per-
<br /> which are reasonable in IBM's judgment, the Customer will return formance or non-performance of Machines or programming
<br /> the Machines or programming on written request by IBM. IBM located outside the United States or Puerto Rico, nor will IBM be
<br /> ees to grant the Customer a credit for returned Machines as liable for ioss of funds contained in. dispensed by or associated
<br /> ,reciated. The depreciation shall be an equal amount per year with. any Machine under this Agreement.
<br /> r the life of the Machines as established by IBM. GENERAL
<br /> 3M has no liability for any claim based upon the combination.
<br /> operation or use of any Machines or programming supplied This Agreement is not assignable without the prior written
<br /> hereunder with equipment or data not supplied by IBM. or based consent of IBM. Any attempt to assign any of the rights, duties or
<br /> upon alteration of the Machines or modification of any program- obligations of this Agreement without such consent is void.
<br /> ming supplied hereunder. IBM has no liability for any claim based IBM may. upon written notice, modify the terms and conditions
<br /> upon the combination, operation or use of any Machines or of this Agreement. Any such modification will apply on the
<br /> programming supplied hereunder with any program other than or effective date specified in the notice to all Supplements which are
<br /> in addition to programming supplied by IBM if such claim would signed by the Customer and IBM on or after the date of notice.
<br /> have been avoided by use of another program whether or not Otherwise, this Agreement can only be modified by a written
<br /> capable of achieving the same results. agreement duly signed by persons authorized to sign agreements
<br /> The foregoing states the entire obligation of IBM with respect to on behalf of the Customer and of IBM, and variance from or addi-
<br /> infringement of patents and copyrights. tion to the terms and conditions of this Agreement in any order or
<br /> other written notification from the Customer will be of no effect.
<br /> LIMITATION OF REMEDIES If any provision or provisions of this Agreement shall be held to
<br /> IBM's entire liability and the Customer's exclusive remedy shall De invalid, iilegal or unenforceable, the validity, legality and
<br /> be as follows: enforceability of the remaining provisions shall not in any way be
<br /> In all situations Involving performance or non-performance of affected or impaired thereby.
<br /> Machines or programming furnished under this Agreement. the IBM IS not responsible for failure to fulfill Its obligations under
<br /> Customer's remedy is 1) the adjustment or repair of the Machine this Agreement due to causes beyond its control or to provide any
<br /> or replacement of its parts by IBM, or. at IBM's option. replace- services nereunder 'or Machines or programming located outside
<br /> ment of the Machine, or correction of programming errors. or 2) If. the United States or Puerto Rico
<br /> after repeated efforts, IBM is unable to install the Machine or a
<br /> replacement Machine in good working order. or to restore it to V4()
<br /> good working order, or to make programming operate all as
<br /> warranted. the Customer shall be entitled to recover actual This Agreement IS governed by the laws of the State of MHN~
<br /> damages to the limits set forth in this Section. For any other clam'
<br /> concêrning performance or non-performance by IBM pursuant X:æi Texas. -
<br /> to, or in any other way related to the SUbject matter of. this ~~
<br /> Agreement or any order under this Agreement. the ClJstomer srai:
<br /> be entitled to recover actual damages to the I'mlts set forth In this
<br /> Section
<br /> IBM's liability for damages to the Customer for any cause what-
<br /> ever, and regardless of the form of action. whether In contract or
<br /> tort including negligence, shall be Umlted to the greater oj
<br /> :)0,000 or the purchase price stated in the applicable Supple-
<br /> ",ent for the specific Machines that caused the damages or tha1
<br /> are the subject matter 0'. or are direc~ly related to. the cause ot
<br /> action The foregoing limitation of liability will not apply to the
<br /> payment of costs. damages and attorney's fees referred to In the
<br /> Section entitled "Patents and CoPYrights.' or to claims for
<br /> personal injury or damage to real property or tangible personal
<br /> property caused by IBM's 'leg!igence.
<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 /> "Machlne(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 Customer IS responsible to implement appropriate safeguards for
<br /> keep the Machines in, or restore the Machines to, good working Customer's data. The Customer is responsible for removing,
<br /> order. Maintenance service includes preventive maintenance controlling and replacing or reloading funds contained in the
<br /> based on the specific needs of individual Machines as determined Machines. IBM will service Machines containing funds only when
<br /> by IBM and on-call remedial maintenance. Maintenance service the cash container cannot be opened prior to repair by IBM. In
<br /> also includes lubrication. adjustments and replacement of main- which case the Customer will remove the funds as soon as the
<br /> tenance parts all as deemed necessary by IBM. Maintenance container has been opened.
<br /> parts, which may be used parts, will be furnished on an exchange PERIODS OF MAINTENANCE SERVICE
<br /> basis, and the replaced parts become the property of IBM. IBM
<br /> ¡ay, at .its option, store maintenance equipment and/or parts on The Base Period of Maintenance Service is from 7 a.m. to 6 p.m.,
<br /> 1e Customer's premises. Monday through Friday, unless otherwise designated by IBM in
<br /> The Customer agrees to provide a suitable environment for the the Supplement. The Customer may select Optional Periods of
<br /> ,J1achines as specified by IBM, and to provide IBM full, free and Maintenance Service shown in the Supplement. The Optional
<br /> safe access to the Machines to provide maintenance service. The Period for Monday through Friday must include the Base Period
<br /> Z125-9029-ûO Page5c'17
<br />
|