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<br /> RISK OF LOSS OR DAMAGE hereunder with equipment or data not supplied by \8
<br /> During the period a machine, model conversion or feature is in any program other than or in addition to programrn¡I1~' ,
<br /> transit or in the possession of the Customer, IBM and its insurers, by IBM if such claim would have been avoided by use o~up
<br /> if any, relieve the Customer of responsibility for all risks of loss of program whether or not capable of achieving the same ~~~\I'I~
<br /> or damage to the machine, model conversion or feature except or based upon alteration of the machines or modification o'~\'3,
<br /> for loss or damage 1) caused by nuclear radiation or radioactive programming supplied hereunder, l1y
<br /> contamination for which the Customer is legally liable, and 2) as The foregoing states the entire obligation of IBM with respect
<br /> set forth in the Section entitled "Services for Additional Charge," to infringement of patents and copyrights,
<br /> IBM is relieved of responsibility for all loss of funds contained in, LIMITATIONS OF REMEDIES
<br /> dispensed by or associated with any machine, IBM's entire liability and thEf Customer's exclusive remedy shall
<br /> INVOICING be as follows:
<br /> Monthly Lease Charges, Monthly Rental Charges and In all situations involving performance or non-performance 0'
<br /> Additional Monthly Maintenance Charges will be invoiced in machines, model upgrades, features or programming furnlshec
<br /> advance as of the first of each month or at greater intervals in under this Agreement, the Customer's remedy is 1) the
<br /> accordance with IBM's then current billing practices, Additional adjustment or repair of the machine, model upgrade or feature, or
<br /> Use Charges and Monthly Use Charges will be invoiced in the replacement of its parts by IBM, or, at IBM's option, replacement
<br /> month following the month in which they are incurred or at of the machine, model upgrade or feature, or correction of
<br /> greater intervals in accordance with IBM's then current billing programming errors. or 2) if, after repeated efforts, IBM is unable
<br /> practices. Charges for maintenance service and other services to install the machine, model upgrade or feature or a
<br /> furnished at IBM's hourly service rates will be invoiced when or replacement machine, model upgrade or feature in good working
<br /> after the service is performed, When a machine, model conver- order, or to restore it to good working order, or to make
<br /> sion or feature is installed. or an Optional Period of Maintenance programming operate, all as warranted, the Customer shall be
<br /> Service is in effect. for a part of a calendar month. the Monthly- entitled to recover actual damages to the limits set forth in this
<br /> Lease Charge, Monthly Rental Charge or any applicab!e Addi- Section, For any other claim concerning performance or non-
<br /> tional Monthly Maintenance Charge will be prorated on the basis performance by IBM pursuant to, or in any way related to the
<br /> of a 30-day month, Additional Use Charges will be prorated in subject matter of, this Agreement and any Supplement or other
<br /> accordance with IBM's established practices, Payment will be order under this Agreement, the Customer shall be entitled to
<br /> made within 30 days after the date of invoice, All other charges recover actual damages to the limits set forth in this Section,
<br /> due hereunder are payable as specified in the invoice. IBM's liability for damages to the Customer for any cause
<br /> WARRANTIES whatsoever, and regardless of the form of action, whether in
<br /> contract or in tort including negligence, shall be limited to the
<br /> IBM warrants that each machine, model upgrade or feature greater of $100,000 or twelve Monthly Lease Charges or Monthly
<br /> addition will be in good working order on the day that it is Rental Charges for the specific machines that caused the
<br /> installed and that it will conform to IBM's official published damages or that are the subject matter of or are directly related to
<br /> specifications, Thereafter, IBM will make all adjustments, repairs the cause of action Such Charges shall be those in effect for the
<br /> and parts replacements necessary to maintain the machine, specific machines when the cause of action arose. The foregoing
<br /> subject to the provisions stated In the Sections entitled limitation of liability will not apply to the payment of cost and
<br /> "Maintenance Service," "Services for Additional Charge" and damage awards referred to in the Section entitled "Patent and
<br /> "R~k of Loss or Damage," Copyrignt Indemnity," or to claims for personal Injury or damage
<br /> IBM further warrants that programming designated by IBM for to real property or tangible personal property caused by IBM's
<br /> use with a machine and for which programming services are 'legllgence
<br /> available will conform to IBM's official published speCIfications In no event will IBM be liable for any damages caused by the
<br /> when shipped to the Customer If properly used on such machine Customer's failure to perform the Customers responsibilities, or
<br /> Thereafter, IBM will provide programming service, subject to the for any lost profits, lost savings or other consequential damages.
<br /> provisions stated in the Section entitled "Programming," even If IBM has been advised of the POSSibility of such damages,
<br /> IBM does not warrant that the functions contained In the or for any claim against the Customer by any other party, except
<br /> programming will operate in the combinations which may be as provided In the Section entitled "Patent and Copyright
<br /> selected for use by the Customer, or will meet the Customer's IndemO!ty "
<br /> requirements, The Customer may discontinue a machine forthwith without
<br /> ALL PROGRAMMING FOR WHICH NO PROGRAMMING Termination Charges for failure of IBM to comply with any of the
<br /> SERVICES ARE AVAILABLE IS DISTRIBUTED ON AN "AS IS" terms and conditions of this Agreement applicable to such
<br /> BASIS WITHOUT WARRANTY. machine,
<br /> IBM does not warrant that the operation of the machine or GENERAL
<br /> programming will be uninterrupted or error free, or that all
<br /> programming errors will be corrected, This Agreement IS not assignable, none of the machines may be
<br /> THE FOREGOING WARRANTIES ARE IN LIEU OF ALL sublet assigned or transferred by the Customer without the prior
<br /> OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, written consent of IBM Any attempt to sublet, assign or transfer
<br /> BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF any of the rights, duties or obligations of this Agreement without
<br /> MERCHANTABILITY AND FITNESS FOR A PARTICULAR such consent IS void,
<br /> PURPOSE. Machines under this Agreement are to be located only in the
<br /> United States and Puerto RIco The Customer agrees to keep IBM
<br /> PATENT AND COPYRIGHT INDEMNITY Informed of the location of each machine, Each machine remains
<br /> IBM will defend the Customer against a claim that machines or 18M's property and may be removed by IBM at any time after
<br /> programming supplied hereunder infringes a U,S. patent or discontinuance of the machine IBM shall have full, free and safe
<br /> copyright or that the machine's operation pursuant to a current access to each mach ine for this purpose.
<br /> release and modification level of any programming supplied by IBM may, upon three months' prior written notice to the
<br /> IBM infringes a U.S. patent IBM will pay resulting costs, damages Customer, discontinue a machine or feature or downgrade a
<br /> and attorney's fees finally awarded provided that: model under a Rental Contract Period at any time or under a Lease
<br /> a) the Customer promptly notifies IBM in writing of the claim: Contract Period or Extension on its Expiration Date, IBM may
<br /> and discontinue a machine forthwith for failure of the Customer to
<br /> b) IBM has sole control of the defense and all related settle- comply with any of the terms and conditions of this Agreement
<br /> ment negotiations, applicable to such machine.
<br /> If such claim has occurred, or in IBM's opinion is likely to occur, The Agreement may be terminated by either party. upon one
<br /> the Customer agrees to permit 18M, at its option and expense, month's prior written notice, following the discontinuance of all
<br /> either to procure for the Customer the right to continue using the machines and fulfillment of all obligations hereunder
<br /> machines or programming or to replace or modify the same so Subject to the terms of the following paragraph, IBM may, upon
<br /> that they become non-infringing. If neither of the foregoing twelve months' prior written notice, modify the terms and
<br /> alternatives is reasonably available, the Customer agrees to conditions of this Agreement. except that IBM may, upon three
<br /> return the machines or programming on wri.tten request by IBM, months' prior written notice, modify the terms and conditions of
<br /> No Termination Charges will be payable on such returned the Sections entitled "Contract Period," "Charges," "Termination
<br /> machines, and the Customer will pay only those charges which Charges,' "Purchase Option," "Lease Contract Period Extension"
<br /> were payable prior to the date of such return, and "Machine Modifications,"
<br /> IBM has no liability for any claim based upon the combination, Any such modification will apply on the effective date specified
<br /> operation or use of any machines or programming supplied in the notice to all Rental Contract Periods and to new Lease
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