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<br />The warranty statement in such written materials also describes the
<br />following in explicit detail, but in genera~ such warranty does not cover:
<br />(1) misuse, neglect or abuse of the Equipment; (2) labor involved in the
<br />removal/reinstallation of warranted Equipment or parts on site; (3) damage
<br />or malfunction as a result of acts of nature; or (4) operating supplies,
<br />including paper, ribbons, accessories and chargeable batteries,
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<br />You expressly understand and agree that, except as set forth above, we
<br />make no warranties whatsoever, express or implied, relative to the
<br />Equipment, including, without limitation, any warranties of
<br />merchantability or fitness for any particular purpose, and you hereby
<br />expressly waive and release us from any and all warranties with respect to
<br />the Equipment, other than those specifically set forth in this Agreement.
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<br />You further expressly understand and agree that our sole liability and your
<br />sole remedy, whether in contract, tort or otherwise, with respect to any
<br />Equipment provided to you under this Agreement will be limited to the
<br />repair or replacement of defective or faulty Equipment in accordance with
<br />the terms of this Agreement, and we will not be liable for indirect or
<br />consequential damages, or damages resulting from the loss of use, data or
<br />profits, arising out of or in connection with the use of, or the inability to
<br />use, the Equipment, and you hereby expressly releases us from any and all
<br />liability with respect to the Equipment, other than as expressly set forth
<br />above.
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<br />WE DISCLAIM ALL OTHER PROMISES, REPRESENT A TIONS AND
<br />WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
<br />EQUIPMENT AND THE SOFTWARE, INCLUDING AS TO ITS
<br />CONDITION, ITS CONFORMITY TO ANY REPRESENT A TIONS OR
<br />DESCRIPTION, THE EXISTENCE OF ANY LATENT OR PATENT
<br />DEFECTS, AND ITS MERCHANTABILITY OR FITNESS FOR A
<br />PARTICULAR PURPOSE."
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<br />13. The following will be added as Section 39: "Return, Repair &
<br />Replacement of Equipment. We will assist you in obtaining repairs and
<br />replacements of any Equipment, which is malfunctioning and which
<br />cannot be made to work properly via telephone assistance provided to you
<br />by our technical support staff.
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<br />The decision to repair or replace Equipment will be at our sole discretion,
<br />and such repair or replacement will be made by a facility designated by us,
<br />We reserve the right to charge for or to refuse repairs or replacements of
<br />Equipment more than thirty (30) days after the initial date of shipment to
<br />you or which is not procured through us.
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<br />In the event that we have approved repair or replacement of specific
<br />Equipment, you will be solely responsible for properly packaging and
<br />promptly returning the defective Equipment to our designated facility,
<br />freight and insurance prepaid. In the event replacement Equipment is sent
<br />to you and you in turn fail or refuse to return the defective Equipment
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<br />BAMS MSA (8-2-05)
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<br />Page 19 of 19
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<br />within thirty (30) days thereafter, we will charge the Settlement Accowlt
<br />for the reasonable fair market value of such replacement Equipment, as
<br />determined at our sole discretion. If you will then afterward properly
<br />return said defective Equipment, we, upon verification of receipt, will
<br />credit you any amowtt so charged, less a handling fee for your failure to
<br />return the defective Equipment in a timely manner.
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<br />You will be liable and will pay for all non-warranty repairs, as well as all
<br />return shipping and handling fees, In the event of a valid warranty claim,
<br />you will be responsible for the cost of returning defective Equipment to
<br />our designated facility as prescribed in this Agreement, plus all repair and
<br />replacement costs, wtless such return is made within thirty (30) days of the
<br />initial shipment of such Equipment to you by us, in which case, your will
<br />be responsible only for such return costs."
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<br />14. The following will be added as Section 40: "Limitation on
<br />Liability for Equipment. Our liability arising out of or in any way
<br />connected with this Agreement will not exceed the purchase price paid to
<br />us for the particular Equipment involved. In no event will we be liable for
<br />any indirect, incidental, special or consequential damages. The remedies
<br />available to you wtder this Agreement will be your sole and exclusive
<br />remedies.
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<br />You warrant that you have chosen the Equipment provided wtder this
<br />Agreement based on your own analysis and evaluation and expressly
<br />disclaim any reliance upon statements or representations by us or others,"
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<br />15. The following will be added as Section 41: "Indemnification for
<br />Equipment You will indemnify and hold us harmless from and against
<br />any and all losses, liabilities, damages and expenses (including attorneys'
<br />fees) resulting from (a) the purchase, delivery, installation, acceptance,
<br />rejection, ownership, leasing, possession, use, operation, condition, liens
<br />against, or return of the Equipment or (b) any breach by you of any of your
<br />obligations hereunder, except to the extent any losses, liabilities, damages
<br />and expenses result from our gross negligence or willful misconduct. This
<br />indemnity will survive the termination of this Agreement."
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<br />You agree to indemnify and hold us harmless from any and all liability for
<br />any claims, actions, proceedings, expenses, damages or liabilities,
<br />including attorney's fees, arising as a result of your selection or use of the
<br />Equipment provided under this Agreement."
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<br />16. The following will be added as Section 42: "Sales Taxes,
<br />Installation & De-installation, Etc. You agree to pay any sales taxes
<br />imposed on the transactions contemplated by this Agreement, as well as
<br />any costs associated with the installation and de-installation of the
<br />Equipment, during the term of this Agreement and authorize us, or our
<br />assigns, to increase the amount of your preauthorized payment to reflect
<br />any and all increases in all applicable taxes, or other taxes imposed on the
<br />transactions, contemplated by this Agreement."
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