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<br />ON..CALL SERVICE AGREEMENT
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<br />C. ON-SITE SERVICE. In conjunction with Remote Diagnostic Service or as the sole
<br />resource, DGSI will provide on-site service to Buyer during the CPM, when on-site service
<br />is required to restore normal Equipment operation. On-site service will be provided as
<br />follows:
<br />i. At Buyer's request for Remedial Maintenance, DGSI will normally arrive at the Installation
<br />LÞcatiþhwithtn the .next tour .hours oUhe CPM provided: (a) the Installation Location
<br />ISWithihfifty Miles df áDGSI Service Center,ánd (b) Buyer has made the Proprietary
<br />Items and any Buyer's items noted in Sections 4 (A and B) above available for immediate
<br />access by DGSI after Buyer's request for service. For Installation Locations beyond fifty
<br />miles from a DGSI Service Center, DGSI will use its best efforts in responding to Buyer's
<br />request.
<br />ii. Buyer may select a 24 hour response in lieu of DGSI's normal 4 hour response, by
<br />initialing the Optional (24 Hour) Response box above, for Equipment types which are
<br />eligible under DGSI's then current policies and are within the prescribed number of miles
<br />from a DGSI Service Center. The 24 hour response will remain in effect during the term
<br />of this Agreement and Buyer will be eligible to receive DGSl's then current discounted
<br />24 hour response rate/price structure.
<br />iii. Notwithstanding the CPM, DGSI will provide Periodic Maintenance, as appropriate to
<br />the Equipment type, during fhe PPM at a frequency specified by DGSI policy and at
<br />times agreeable to both parties. Periodic Maintenance may be performed concurrently
<br />with Remedial Maintenance.
<br />iv. DGSI will provide all labor, parts and Equipment modifications DGSI deems necessary
<br />for maintaining the Equipment in good operating condition. All parts will be furnished
<br />on an exchange basis and will be new standard parts Or parts of equal quality. All
<br />parts removed for replacement shall become the property of DGSI. All parts installed
<br />by DGSI shall become the property of the Buyer.
<br />5. CHARGES
<br />A. The Basic Monthly Charge (BMC) is the sum total of all the monthly maintenance
<br />charges for on-site service chosen within the PPM, exclusive of all applicable discounts
<br />and surcharges. The Total Montilly Charge (TMC) is the sum total of the BMC, additional
<br />charges for the CPM and EPD it applicable, and all other applicable discounts and
<br />surcharges. Discounts are calculated based on the BMC.
<br />B. An Agreement covering DESKTOP GENERATION Computer Systems or Intelligent
<br />Workstations only, may be subject to additional monthly mileage surcharges, based on
<br />the distance between the Installation Location and the nearest DGSI Service Center and
<br />in accordance with DGSI's then current policies and rates.
<br />C. Printers covered under this Agreement may be subject to usage surcharges in
<br />addition to the BMC and in accordance with DGSI's then current policies and rates.
<br />D. Installation Locations in Alaska and Hawaii may be subject to monthly mileage
<br />surcharges based on the distance between the Installation Location and the nearest DGSI
<br />Service Center.
<br />E. The TMC will be invoiced monthly in advance. All invoices are due and payable in
<br />full thirty days from date of invoice. Invoices not paid within thirty days of the invoice
<br />date will have a 1.6 percent per month interest charge, or the highest lawful rate, whichever
<br />is less, assessed against the unpaid balance from the date of the invoice until the date
<br />of payment. Buyer shall pay all costs involved in collecting its overdue accounts including
<br />reasonable attorney's fees.
<br />F. All charges are exclusive at all sales, use and like taxes. Such taxes are the
<br />responsibility of the Buyer and will be billed to the Buyer as a separate line item on each
<br />invoice.
<br />G. All charges and invoicing procedures are subject to change by DGSI at any time
<br />following the expiration of the Initial Term upon a minimum of sixty days prior written
<br />notice.
<br />H. Charges (labor and materials) tor any maintenance service, Equipment repairs and/
<br />or adjustments, installations, etc. performed by DGSI and not covered under this Agreement
<br />shall be invoiced to Búyer at DGSI's non-contract rates and terms in effect when the
<br />service is performed.
<br />6. INSTALLATION SERVICE
<br />When the Equipment is installed by DGSI, Buyer agrees, at its sale cost and expense to:
<br />(i) prepare the Installation Location prior to installation in accordance with DGSl's site
<br />planning specifications, and (ii) provide the necessary labor tor unpacking and placement
<br />at the Equipment, which DGSI shall supervise. Installation by DGSI will be performed during
<br />the PPM only.
<br />7. MOVEMENT OF EQUIPMENT
<br />This Agreement will remain in eftect if the Equipment covered hereunder is moved to
<br />another Installation Location within the 50 United States or District at Columbia, subject
<br />to the terms and conditions herein and the fallowing stipulations: (A) Buyer shall provide
<br />DGSI written notice at such movement a minimum of thirty days prior to the date at
<br />dismantling of the Equipment; (B) DGSI reserves the right to supervise the dismanfling,
<br />packing and unpacking of the Equipment and to inspect and install the Equipment at the
<br />new Installation Location; (C) The TMC will be suspended on the date the Equipment is
<br />dismantled and reinstated with adjustment, if applicable, on the day following acceptance
<br />by DGSI at the new Installation Location; and (D) DGSI has the right to terminate this
<br />Agreement if more than sixty (60) days elapse from the date of dismantling until the date
<br />of acceptance at the new Installation Location.
<br />8. CHANGES IN EQUIPMENT
<br />A. DGC supplied products purchased by the Buyer and added to the Equipment covered
<br />hereunder shall automatically be added to this Agreement upon the expiration of the DGC
<br />warranty period or immediately after acceptance and completion of inspection by DGSI,
<br />as applicable, in accordance with Clause 1 above, for a period of not less than three
<br />months.
<br />B. Subject to DGC's minimum equipment configuration requirements as set forth in
<br />Clause 1 herein, Buyer may delete products from the Equipment covered hereunder upon
<br />a minimum of sixty (60) days prior written notice. Upon termination of service, Buyer shall
<br />ensure that such deleted products are removed from and no longer used in conjunction
<br />with the remainder of the Equipment covered hereunder.
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<br />9. ACCESS TO EQUIPMENT
<br />The Buyer or Buyer's customer (End User), as the case may be, shall provide at no
<br />charge to DGSI, full and free access to the Equipment covered hereunder, working space
<br />in accordance with DGSI site specifications, adequate facilities near the Equipl"e~t, and
<br />use of any machines, attachments, features, user ports or other materials necessary for
<br />the specified maintenance services..
<br />10. EXCLUSIONS
<br />A. DGSI shall not be obligated to provide maintenance service under this Agreement
<br />should repair or adjustment be required because of: (i) repair, adjustment or modification,
<br />whether made or attempted, of the Equipment by other than authorized DGSI representatives;
<br />(ii) failure of Buyer or Buyer's customer to provide a suitable installation environment; (iii)
<br />use of operating supplies which do not meet DGSI's specifications; (iv) misuse or accident
<br />attributable to Buyer or Buyer's customer including but not limited to unusual physical Or
<br />electrical stress; (v) improper programming or improper installation by Buyer or Buyer's
<br />customer; (vi) relocation of the Equipment without DGSI's prior approval; (vii) damage
<br />caused by accessories, alterations, attachments or other devices neither furnished nor
<br />maintained by DGSI; (viii) failure of air-conditioning, electrical power, or humidity control;
<br />(ix) Acts of God, fire, flood, earthquake, lightning strikes, riots, war, or nuclear disaster
<br />or other such causes.
<br />B. DGSI shall not be required to maintain any Equipment with microcode provided on
<br />removable magnetic media unless such microcode is kept at current revision level dunng
<br />the term of this Agreement.
<br />C. DGSI shall not be required to maintain any alterations, attachments or other devicE
<br />integral or interconnected to the Equipment covered hereunder which were not suppli,
<br />by DGC or DGSI. When, in the reasonable opinion of DGSI, such modifications adversE
<br />affect DGSI's ability to render service to the Equipment, DGSI reserves the right
<br />immediately terminate this Agreement in its entirety.
<br />D. When, in the reasonable opinion of DGSI, maintaining the Equipment in good operating
<br />condition is no longer possible for any reason including normal wear and tear, DGSI shall
<br />provide Buyer an estimate of refurbishment charges. Should Buyer fail to make the
<br />Equipment available to DGSf for such refurbishment wifhin sixty (60) days after receipt of
<br />the estimate, DGSI may terminate service for such Equipment, and such estimate shall
<br />be null and void.
<br />E. Services under this Agreement do not include: electrical work external to the Equipment;
<br />operating supplies or accessories including media; or refinishing the Equipment, or furnishing
<br />materials for this purpose.
<br />11. DISCLAIMER OF WARRANTY
<br />DGSI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED WITH REGARD TO THE
<br />SERVICES AND MATERIALS PROVIDED HEREUNDER, INCLUDING ALL WARRANTIES OF
<br />MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARISING OUT OF OR IN
<br />CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT.
<br />12. LIMITATION OF LIABILITY
<br />A. IN NO EVENT SHALL DGSI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT
<br />OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST
<br />PROFIT AND DAMAGES RESULTING FROM LOSS OF USE OR LOST DATA) HOWEVER
<br />CAUSED, INCLUDING NEGLIGENCE AND REGARDLESS OF THE FORM OF ACTION
<br />WHETHER IN CONTRACT OR TORT, EVEN IF DGSI HAS BEEN ADVISED, KNEW OR
<br />SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF DGSI WILL NOT BE LIABLE FOR
<br />ANY FAILURE OR DELAY IN PERFORMANCE DUE IN WHOLE OR IN PART TO ANY
<br />CAUSE BEYOND THE REASONABLE CONTROL OF DGSI.
<br />B. IN NO EVENT SHALL DGSI'S TOTAL LIABILITY FOR DAMAGES HEREUNDER EXCEED
<br />THE TOTAL NET CHARGES PAID BY BUYER TO DGSI FOR SERVICES PERFORMED
<br />DIRECTLY UNDER THIS AGREEMENT DURING THE IMMEDIA TEL Y PRECEDING TWELVE
<br />(12) MONTH PERIOD IN WHICH A CLAIM IS MADE UNDER THIS AGREEMENT.
<br />C. Any action against DGSI must be commenced within one year after the cause of
<br />action accrues.
<br />13. BUYER REPRESENTATION
<br />When the Installation Location is other than at Buyer's location, Buyer represents and
<br />agrees that its contract with its customer (End User) shall incorporate, as a minimum, all
<br />the information, obligations and limitations set forth in Clause 4 above, as well as DGSl's
<br />warranty disclaimer (Clause 11) and liability limitations (Clause 12) herein.
<br />14. TERMINATION
<br />Notwithstanding Clause 2, entitled Term of Agreement, DGSI shall have the right to
<br />terminate this Agreement and any other agreement with Buyer, upon the occurrence of
<br />any of the fallowing events: (A) Buyer fails to perform or observe any of its obligatio"
<br />to DGSI under this Agreement or any other then current agreement with DGSI/DG
<br />including, but not limited to, the timely payment of any sums due to DGSI and complian
<br />with Buyer's representations and warranties contained in Clause 13, "Buyer Representatio!
<br />hereof; (B) Buyer admits in writing its inability to pay its debts generally as they becor
<br />due, or executes an assignment or similar document tor the benefit of creditors; (C) the
<br />appointment of a receiver, trustee in bankruptcy or similar officer regarding Buyer's property;
<br />(D) there is a transfer of a majority interest of the equity or assets of Buyer; and (E)
<br />there is an assignment of this Agreement without the prior written consent of DGSI; and
<br />such event(s) is not remedied to the reasonable satisfaction of DGSI within twenty (20)
<br />days after DGSI has sent written notice to Buyer. Termination shall not be DGSI's exclusive
<br />remedy and no such termination shall adversely affect any claim, right or action which
<br />DGSI may have for damages or otherwise against Buyer regarding any failure of Buyer
<br />to perform or observe its obligations to DGSI.
<br />15. GENERAL
<br />A valid contract binding upon DGSI will come into being only at the time of DGSI's
<br />acceptance of this Agreement. The Agreement will be governed by the laws of the state
<br />in which the Instðllation Location is situated. Neither the Agreement nor the services are
<br />assignable and any attempted assignment shall be void. Any notice required or allowed
<br />under this Agreement shall be deemed properly given if mailed postage prepaid to the
<br />Buyer at the invoice address shown above or to DGSI at 50 Maple Street, Milford,
<br />Massachusetts 01757. This Agreement is the complete and exclusive statement of the
<br />contract between the parties and supersedes all prior oral or written communications,
<br />agreements and understandings between the parties and shall prevail notwithstanding any
<br />difterent, conflicting or additional terms and conditions which may appear on any order
<br />submitted by Buyer.
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