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<br /> ON-CALL SERVICE AGREEMENT
<br /> C. ON-SITE SERVICE. In conjunction with Remote Diagnostic Service or as the sale 9. ACCESS TO EQUIPMENT
<br /> resource, DGSI will provide on-site service to Buyer during the CPM, when on-site service The Buyer or Buyer's customer (End User), as the case may be, shall provide at no
<br /> is required to restore normal Equipment operation. On-site service will be provided as charge to DGSI, full and free access to the Equipment covered hereunder, working space
<br /> follows: in accordance with DGSI site specifications, adequate facilities near the Equipment, and
<br /> i. At Buyer's request for Remedial Maintenance, DGSI will normally arrive at the Installation use of any machines, attachments, features, user ports or other materials necessary for
<br /> Location within the next four hours of the CPM, provided: (a) the Installation Location the specified maintenance services
<br /> is within fifty miles of a DGSI Service Center, and (b) Buyer has made the Proprietary 10. EXCLUSIONS
<br /> Items and any Buyer's items noted in Sections '4 (A and B) above available for immediate A. DGSI snail not be obligated to provide maintenance service under this Agreement
<br /> access by DGSI after Buyer's request for service. For Installation Locations beyond fifty should repair or adjustment be required because of: (i) repair, adjustment or modification,
<br /> miles from a DGSI Service Center, DGSI will use its best efforts in responding to Buyer's whether l)1ade or attempted, of the Equipment by other than authorized DGSI representatives;
<br /> request. (ii) failure of Buyer or Buyer's customer to provide a suitable installation environment: (iii)
<br /> ii. Buyer may select a 24 hour response in lieu of DGS/'s normal 4 hour- response, by use of operating supplies which do not meet DGSI's specifications; (iv) misuse or accident
<br /> initialing the Optional (24 Hour) Response box above, for Equipment types which are attributable to Buyer or Buyer's customer including but not limited to unusual physical or
<br /> eligible under DGS/'s then current policies and are within the prescribed number of miles electrical stress; (v) improper programming or improper installation by Buyer or Buyer's
<br /> from a DGSI Service Center. The 24 hour response will remain in effect during the term customer; (vi) relocation at the Equipment without DGSl's prior approval; (vii) damage
<br /> of this Agreement and Buyer will be eligible to receive DGSl's then current discounted caused by accessories, alterations, attachments or other devices neither furnished nor
<br /> 24 hour response rate/price structure. maintained by DGSI; (viii) failure of air-conditioning, electrical power, or humidity control;
<br /> iii. Notwithstanding the CPM, DGSI will provide Periodic Maintenance, as appropriate to (ix) Acts of God, fire, flood, earthquake, lightning strikes, riots. war, or nuclear disaster
<br /> the Equipment type, during the PPM at a frequency specified by DGSI policy and at or other such causes.
<br /> times agreeable to both parties. Periodic Maintenance may be performed concurrently B. DGSI shall not be required to maintain any Equipment with microcode provided on
<br /> with Remedial Maintenance. removable magnetic media unless such microcode is kept at current revision level during
<br /> iv. DGSI will provide all labor, parts and Equipment modifications DGSI deems necessary the term of this Agreement.
<br /> for maintaining the Equipment in good operating condition. All parts will 'be furnished C. DGSI shall not be required to maintain any alterations, attachments or other de,
<br /> on an exchange basis and will be new standard parts or parts of equal quality. All integral or interconnected to the Equipment covered hereunder which were not SUP!
<br /> parts removed for replacement shall become the property of DGSI. All parts installed by DGC or DGSI. When, in the reasonable opinion of DGSI, such modifications advel
<br /> by DGSI shall become the property of the Buyer. affect DGSl's ability .to render service to the Equipment, DGSI reserves the righ
<br /> 5. CHARGES immediately terminate this Agreement in its entirety.
<br /> A. The Basic Monthly Charge (BMC) is the sum total of all the monthly maintenance D. When, in the reasonable opinion of DGSI, maintaining the Equipment in good operating
<br /> charges for on-site service chosen within the PPM, exclusive of all applicable discounts condition is no longer possible for any reason including normal wear and tear, DGSI shall
<br /> and surcharges. The Total Monthly Charge (TMC) is the sum total of the BMC, additional provide Buyer an estimate of refurbishment charges. Should Buyer fail to make the
<br /> charges for the CPM and EPD if applicable, and all other applicable discounts and Equipment available to DGSI for such refurbishment within sixty (60) days after receipt of
<br /> surcharges. Discounts are calculated based on the BMC. the estimate, DGSI may terminate service for such Equipment, and such estimate shall
<br /> B. An Agreement covering DESKTOP GENERATION Computer Sysfems or Infelligent be null and void.
<br /> Workstations only, may be subject to additional monthly mileage surcharges, based on E. Services under this Agreement do not include: electrical work external to the Equipment;
<br /> the distance between the Installation Location and the nearest DGSI Service Center and operating supplies or accessories including media; or refinishing the Equipment, or furnishing
<br /> in accordance with DGSI's then current policies and rates. materials for this purpose.
<br /> C. Printers covered under this Agreement may be subject to usage surcharges in 11. DISCLAIMER OF WARRANTY
<br /> addition to the BMC and in accordance with DGS/'s then current policies and rates, DGSI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED WITH REGARD TO THE
<br /> D. Installation Locations in Alaska and Hawaii may be subject to monthly mileage SERVICES AND MATERIALS PROVIDED HEREUNDER, INCLUDING ALL WARRANTIES OF
<br /> surcharges based on the distance between the Installation Location and the nearest DGSI MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARISING OUT OF OR IN
<br /> Service Center. CONNECTION WITH THE PERFORMANCE OF THIS AGREEMENT.
<br /> E. The TMC will be invoiced monthly in advance. All invoices are due and payable in 12. LIMITATION OF liABiliTY
<br /> full thirty days from date of invoice. Invoices not paid within thirty days of the invoice A. IN NO EVENT SHALL DGSI BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT
<br /> date will have a 1.6 percent per month interest charge, or the highest lawful rate, whichever OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOST
<br /> is less, assessed against the unpaid balance from the date of the invoice until the date PROFIT AND DAMAGES RESULTING FROM LOSS OF USE OR LOST DATA) HOWEVER
<br /> of payment. Buyer shall pay all costs involved in collecting its overdue accounts including CAUSED, INCLUDING NEGLIGENCE AND REGARDLESS OF THE FORM OF ACTION,
<br /> reasonable attorney's fees. WHETHER IN CONTRACT OR TORT, EVEN IF DGSI HAS BEEN ADVISED, KNEW OR
<br /> F. All charges are exclusive of all sales, use and like taxes. Such taxes are the SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. DGSI WILL NOT BE LIABLE FOR
<br /> responsibility of the Buyer and will be billed to the Buyer as a separate line item on each ANY FAILURE OR DELAY IN PERFORMANCE DUE IN WHOLE OR IN PART TO ANY
<br /> invoice. CAUSE BEYOND THE REASONABLE CONTROL OF DGSI.
<br /> G, All charges and invoicing procedures are subject to change by DGSI at any time B. IN NO EVENT SHALL DGSI'S TOTAL LIABILITY FOR DAMAGES HEREUNDER EXCEED
<br /> following the expiration of the Initial Term upon a minimum of sixty days prior written THE TOTAL NET CHARGES PAID BY BUYER TO DGSI FOR SERVICES PERFORMED
<br /> notice. DIRECTLY UNDER THIS AGREEMENT DURING THE IMMEDIA TEL Y PRECEDING TWELVE
<br /> H. Charges (labor and materials) for any maintenance service, Equipment repairs and/ (12) MONTH PERIOD IN WHICH A CLAIM IS MADE UNDER THIS AGREEMENT
<br /> or adjustments, installations, etc. performed by DGSI and not covered under this Agreement C. Any action against DGSI must be commenced within one year after the cause of
<br /> shall be invoiced to Bwer at DGSI's non-contract rates and terms in effect when the action accrues.
<br /> service is performed. 13. BUYER REPRESENTATION
<br /> 6. INSTAllATION SERVICE When the Installation Location is other than at Buyer's location, Buyer represents and
<br /> When the Equipment is installed by DGSI, Buyer agrees, at its sale cost and expense to: agrees that its contract with its customer (End User) shall incorporate, as a minimum, all
<br /> (i) prepare the Installation Location prior to installation in accordance with DGSI's site the information, obligations and limitations set forth in Clause 4 above, as well as DGSl's
<br /> planning specifications, and (ii) provide the necessary labor for unpacking and placement warranty disclaimer (Clause 11) and liability limitations (Clause 12) herein.
<br /> of the Equipment, which DGSI shall supervise. Installation by DGSI will be performed during 14. TERMINATION
<br /> the PPM only. Notwithstanding Clause 2, entitled Term of Agreement, DGSI shall have the right to
<br /> 7. MOVEMENT OF EQUIPMENT tE¡rminate this Agreement and any other agreement with Buyer, upon the occurrence
<br /> This Agreement will remain in effect if the Equipment covered hereunder is moved to any of the tollowing events: (A) Buyer fails to perform or observe any of its obligati(
<br /> another Installation Location within the 50 United. States or District of Columbia, subject to DGSI under this Agreement or any other then current agreement with DGSI/DC
<br /> to the terms and conditions herein and the following stipulations: (A) Buyer shall provide including, but not limited to, the timely payment of any sums due to DGSI and complia,
<br /> DGSI written notice of such movement a minimum of thirty days prior to the date of with Buyer's representations and warranties contained in Clause 13, "Buyer Representatic
<br /> dismantling of the Equipment; (B) DGSI reserves the right to supervise the dismantling, hereof; (B) Buyer admits in writing its inability to pay its debts generally as they become
<br /> packing and unpacking of the. Equipment and to inspect and install the Equipment at the due, or executes an assignment or similar document for the benefit of creditors; (C) the
<br /> new Installation Location; (C) The TMC will be suspended on the date the Equipment is appointment of a receiver, trustee in bankruptcy or similar officer regarding Buyer's property;
<br /> dismantled and. reinstated with adjustment, if applicable, on the day following acceptance (0) there is a transfer of a majority interest of the equity or assets of Buyer; and (E)
<br /> by DGSI at the. new installation Location; and (D) DGSI has the right to terminate this there is an assignment of this Agreement without the prior written consent of DGSI; and
<br /> Agreement if more than sixty (60) days elapse from the date of dismantling until the date such event(s) is not remedied. to the reasonable satisfaction of DGSI within twenty (20)
<br /> of acceptance at the new Installation Location. days after DGSI has sent written notice to Buyer. Termination shall not be DGSl's exclusive
<br /> 8. .CHANGES IN EQUIPMENT remedy and no such termination shall adversely affect any claim, right or action which
<br /> A. DGC supplied products purchased by the Buyer and added to. the Equipment covered DGSI may have for damages or otherwise against Buyer regarding any failure of Buyer
<br /> hereunder shall automatically be added to this Agreement upon the expiration of the DGC to perform or observe its obligations to DGSI.
<br /> waITanty period or immediately after acceptance and completion of inspection by DGSI, 15. GENERAL
<br /> as applicable, in accordance with Clause 1 above, for a period of not less than three A valid contract binding upon DGSI will come into being only at the time of DGSI's
<br /> months. acceptance of this Agreement. The Agreement will be governed by the laws of the state
<br /> B. Subject to DGC's minimum equipment configuration requirements as set forth in in which the Installation Location is situated. Neither the Agreement nor the services are
<br /> Clause 1 herein, Buyer may delete products from the Equipment covered hereunder upon assignable and any attempted assignment shall be void. Any notice required or allowed
<br /> a minimum of sixty (60) days prior written notice. Upon termination of service, Buyer shall under this Agreement shall be deemed properly given if mailed postage prepaid to. the
<br /> ensure that such deleted products are removed from and no longer used in conjunction Buyer at the invoice address shown above or to DGSI at 50 Maple Street, Milford,
<br /> with the remainder of the Equipment covered hereunder. 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 /> different, conflicting or additional terms and conditions which may appear on any order
<br /> submitted by Buyer.
<br /> :::R~ I~ DATA GENERAL SERVICE, INCORPORATED
<br /> ACCEPT~.~ aJ~
<br /> NAME Ú'/11eLJ.
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<br /> ^ iiTL"'i1\ Mayor
<br /> '. DArê' February 14, 1989 TITLE
<br /> DATE ()11J.(f'1 r. I
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