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ENGINEERING CHANGES PURCHASE OF NON-IBM EQUIPMENT IBM will furnish, upon request. and at IBM'S prices then gener- As.previously stated, the tenn "Machines" in this Agreement ally In effect. such englneeri~changes as IBM shall have avail- also applies to non-IBM equipment. However, the Sections of this able for sale and which may suitable for use on or with the Agreement entitled "Installation," "Warranties," "Other Products Machines. Any replaced parts become the property of IBM. IBM and Services" and "Patents and Copyrights" are replaced in makes no representation that engineering = announced their entirety by the following in respect to nOO-IBM equipment. in the future will be suitable for use on or with the &Chines. PATENTS AND COPYRIGHTS Inatallatlon IBM will, at Its expense, defend the Customer against any The Customer shall provide a suitable installation environmel claim that any Machinesor.p~ming supplied hereunder in- with facilities as prescribed by the manufacturer. Arr~emen: for installation will be the responsibility of the Customer. BM he ~ a patent or copyright In .e United States or Puerto Rico, no responsibility for installation under this Agreement nor for any will pay all costs, damages and attorney's fees that a court finally awards as a result of such claim. To qualify for such de- installation perfonned by the manufacturer. tense and payment, the Customer must: 1 ~ give IBM prompt written notice of any such claim; and W arrant1e8 2 allow IBM to control, and fully cooperate with IBM in, the de- NON-IBM EQUIPMENT IS NOT WARRANTED BY IBM AND fense and all related settlement negotiations. IBM's obligation under this Section is conditioned on the Cus- IS SOLD BY IBM TO THE CUSTOMER. ON AN "AS IS" tomer's ~nt that if the operation of the Machines or prog- BASIS. DlIAI ARI NO IBM 'NARflAtØlES EXPRE66 eA ramming e, or in IBM'S opinion are likely to become, the IMPUID, INÐl.U9ING, Bur NEW UMfR!D1'8, 'fH1! IMIJUI!D Þ subject of such a claim, the Customer will pennit IBM, at its option \\"ARMNnI:S er ME:ReIIAffI'ABILffV AND '¿I.U::- reR" and expense, either to procure the right for the Customer to con- N.A~"UJR PUAPOII. HGWIit...A, DIE MAN"FA~' !~~~I!.~ ~R~_~, If ANY, "'PUCS, AN8'R II: eue t.k./(l tinue Usi~ Machines or. programming or to ~ace or modify 1'OME" -MUM DI!M. WITH ?HI! MNUP*GTU"I!" eN suell them so they become noninfringing; and, i neither of the MAniAS. . - -- --- foregoing alternatives is available on terms which are reasonable in IBM'S judgment, the Customer will return the Machines or prog- -.-- -.-.- ramming on written request by IBM. IBM agrees to grant the Cus- at...... Priidüëtà -8ñd S8rŸ1ë.¡ -. _. ~: - - tomer a credit for returned Machines as depreciated. The depre- -_. ciatlon shall be an equal amount per year over the life of the The Customer. is responsible for arranging for maintenance Machines as established by IBM. service for non-IBM equipment. IBM shall have no obligation with respect to an~such claim based upon the Customer's modification of the &chInes or Patents and Copyrights programming or their combination, operation or use with ap- paratus, data or programs not furnished by IBM. IBM shall have no liablHty to the Customer regarding patent or "'This Section states ISM's entire obligation to the Customer re- copyright Infringement for non-tBM equipment. garding infringement or the like. UMIT A TlON OF. REMEDIES GENERAL IBM's entire. liability and the Customer's exclusive remedy This Agreement and ~ on-order Machines are not assigna- shall be as follows: ble to other than an IBM jate without the prior written consent In all situations involving perfonnance or nonperfonnance of of IBM. An~ attempt to assign any of the rights, duties or oblig¡ Machines or progranvni~ furnished under this Agreement, the tions of th s Agreement without such consent is void. Customer's remedy is 1) adjustment or repair of the Machine The Customer agrees to comply with the provisions of any Er or replacement of its parts by IBM, or, at IBM'S option, replacement User Certification contained in. any Supplement to this Agret. of the Machine, or correction of programmi':.i errors, or 2) if, after ment, or in any volume procurement or single shipment quantity repeated efforts, IBM is unable to install the achine or a replace- discount amendment to this Agreement. ment Machine in good working order, or to restore it to good IBM may, upon written notice, mod~ the tenns and conditions working order, or to make programming operate, all as war- of this Agreement. Any such modification will apply. on the effec- ranted, the Customer shall be entitled to recover actual damages tive date specified in the notice to all orders for purchase which to the limits set forth in this Section. For any other claim concern- are accepted by IBM on or after the date of notice. In addition, IBM ing perfonnance or nonperformance by IBM pursuant to, or in any may. modify this Agreement by setting forth such modification in other way related to the subject matter of,this ~nt or any a Supplement which issubsequent~accePted. by the Customer order under this Agreement, the Customer shall entitled to re- as provided herein. Otherwise, this reement can only be mod- cover actual damages to the limits set forth in this Section. ifiedby a written agreement dUlY signed by persons authorized IBM's liability for damages to the Customer for any cause to sign ~reements. on behalf 0 the. Customer and of IBM, and whatsoever, except as otherwise stated in this Section, and re- variance rom or addition to the tenns and conditions of this gardiess of the fonn of action, whether in contract or in tort in- Agreement in any order or other written notification from the Cus- cluding negligence, shall be limited to the treater of $100,000 or tomer will be of no effect. the Purchase Price stated in the applicab Supplement for the If any provision or provisions of this Agreement shall be held specific Machines. that caused the damages or that are the sub- to be invalid, illegal or unenforceable, the validity, legality and ject matter of, or aredir~ related to,the cause of action. The enforceability of the remaining provisions shall not in any way be foregoing limitation of liabi ~ will not apply to the payment of affected or impaired thereby. costs, damages and attorne s fees referred to in the Section en- IBM is not responsible for failure to fulfill its obligations under titled "Patents and Copyrights," or to claims for personal injury or this Agreement due to causes beyond its control or to provide damage to real property or tangible. personal property caused by any services hereunder for Machines or programming located IBM'S negligence. outside the United States or Puerto Rico. In no event will IBM be liable for any damages caused by the ...: :eB=w;p~I:=8~ ~=' ;::&;\:~ ~g=~::t C:: Customer's failure to perfonn the Customer's responsibilities, or for any lost profits, lost savings or other consequential damages, Myee 8f aReA AM aR&8A or iA tÀ9 ("'9 Of ..n ..Mìr\n fi'\r 1vvI- ~ even if IBM has been advised of the possibility of such dam~es, ~!~~, R'l8Fe 1Â8R 11::9 Ý9- traM lÂe Etate tA9 1- iaYMe, "'. - - - or for any claim by the Customer based on any third party aim wa.& åtw. except as provided in the Section entitled "Patents and If the Customer fails to pay the Purchase Price due hereunder Copyrights," or for any damages caused by performance or non- and IBM repossesses a Machine as provided by law, the Custom- performance of Machines or programming . located outside the er agrees to pay all costs and expenses of repossession, inclu ~ United States or Puerto Rico, nor will IBM be . liable for loss of i~easonabIe attorney's fees. funds contained in, dispensed by, or associated with any . s Agreement is governed by the laws of the State of He # Machine under this Agreement ¥el4tFTe.xas. ~